dissenting:
It is my opinion that our former Tidal Judge James F. Davis fully and correctly resolved the difficult and perplexing issues presented by this case in his scholarly and well-reasoned opinion. I would therefore adopt his opinion, findings of fact, and recommended conclusions of law as a basis for a judgment by the court in favor of the plaintiff.
In its discussion of the grounds for the decision which rejected the trial judge’s conclusions, the court has, in my opinion, unduly emphasized the facts that are favorable to the defendant and has given inadequate consideration to other facts which led the trial judge to reach a contrary result. For these reasons, I am incorporating in this dissent those portions of the trial judge’s opinion which I think are particularly pertinent to the grounds upon which the case has been decided. In view of the court’s extensive discussion of the issues and its consideration of some matters not argued to the trial judge, I am supplementing his opinion with the material that follows.
As a preface to my disagreement with the court, I think it would be helpful to point out that this is not a case involving copying of copyrighted material by a scholar or his secretary in aid of his research, nor is it a case where a teacher has reproduced such material for distribution to his class. Also, it is not a case where doctors or scientists have *108quoted portions of plaintiff’s copyrighted articles in the course of writing other articles in the same field. We are not concerned here with a situation in which a library makes copies of ancient manuscripts or worn-out magazines in order to preserye information. What we have before us is a case of wholesale, machine copying, and distribution of copyrighted material .by defendant’s libraries on a scale so vast that it dwarfs the output of many small publishing companies. In order to fill requests for copies of articles in medical and scientific journals, the NIH made 86,000 Xerox copies in 1970, constituting 930,000 pages. In 1968, the NLM distributed 120,000 copies of such journal articles, totalling about 1.2 million pages. As the trial judge correctly observed, this extensive operation is not only a copying of the copyrighted articles, it is also a reprinting by modern methods and publication by a very wide distribution to requesters and users.
I
Photographic Reproduction of Plaintiff's Journal Articles Is An Abridgement of the Copyright Owner's Exclusive Right To Copy
The majority maintains there is a “solid doubt” whether and how far the word “copy” in Section 1(a) of the 1909 Copyright Act applies to boobs and journals. The argument continues that the infringement of periodical articles can come only through “printing,” “reprinting,” or “publishing.” Certainly few things in the law are beyond all doubt or qualification. I think it is apparent, however, from the wording of the 1909 Act, and from the cases interpreting that Act, that Congress intended the word “copy” to apply to books and journals as well as other copyrightable materials. Section 1(a) of the 1909 Act gives the copyright proprietor the exclusive right to “print, reprint, publish, copy, and vend the copyrighted work.” 17 U.S.C. §1 (1970). It follows that copying of a substantial portion of the copyrighted work by someone other than the copyright owner would be an infringement.
I think the trial judge correctly concluded that there is nothing in the legislative history of the 1909 Act which *109indicates that a restrictive definition of the word “copy” was intended. A significant change in the 1909 Act was the elimination of sections 4964 and 4965 of the prior copyright statute, which it is claimed, are the source of the distinction between the copying of books and the copying of other copyrighted material.1 By removing those two sections and by adopting the general classification of “copyrighted works” in Section 1(a) and a general listing of all copyrightable works in Section 5 of the 1909 Act, Congress obliterated the distinction, if there ever had been one, between the copying of books and the copying of other materials.2
As a result of the simple clarity in the phrasing of the copyright owner’s exclusive rights in the 1909 Act, it is not surprising that numerous court decisions interpreting that Act have focused on the copying of copyrighted material (including books and other items of this type) as the infringing act. See, e.g., Harold Lloyd Corp. v. Witwer, 65 F. 2d 1, 16-19 (9th Cir. 1933); King Features Syndicate v. Fleischer, 299 F. 533, 535 (2d Cir. 1924).
I have not been able to find one decision since the 1909 Act which has held that the word “copy” in section 1(a) would not apply to the making of one or a number of copies of a book or other material of this type. The cases have simply not recognized the claimed distinction between copying and printing or publishing. For example, in New York Tribune, Inc. v. Otis & Co., 39 F. Supp. 67 (S.D.N.Y. 1941), the court found the making of Photostatic copies of plaintiff’s newspaper editorial and masthead to be a “good cause of action on its face,” and denied defendant’s motion for summary judgment. Id. at 68. The defendant in that case had distributed the photocopies to a selected list of public officials, bankers, educators, economists and other persons. The court drew no distinction between printing, publishing, or copying. *110By comparison, the copying and distributing of the newspaper editorial and masthead in that case is very similar to the copying and distributing of the journal articles in the present action.3
Therefore, I do not think there is substantial doubt that the photocopying by defendant’s libraries is a copy of the plaintiff’s journal articles in violation of the copyright owner’s exclusive right to copy or to multiply copies of his work under section 1 (a). I can see no reason to draw a distinction between copying of “books” and copying of other materials when the distinction is expressly rejected on the face of the copyright statute, has not been observed in numerous cases applying the 1909 Act, and has no reasonable basis in light of the purposes of copyright protection.4
II
The Photocopying of Plaintiff's Copyrighted Articles Was Not Fair Use
1. Realizing the necessity for showing that the defendant’s unauthorized copying of plaintiff’s articles was both reasonable and insubstantial, the court relies heavily on policies which were adopted by the libraries in 1965. Although these policies were designed to limit the extent of copying that had been done in prior years, the trial judge’s opinion and the findings of fact show the exceptions are routinely granted by the defendant’s libraries, that there is no way to enforce most of the limitations, and that defendant is operating a reprint service which supplants the need for journal subscriptions.
*111In particular, the trial judge has, I think, clearly demonstrated that the claimed “single-copy-per-request” limitation is both illusory and unrealistic. He has found, and it is not disputed, that the libraries will duplicate the same article over and over again, even for the same user, within a short space of time. NLM will supply requesters photocopies of the same article, one after another, on consecutive days, even with knowledge of such facts. I find great difficulty in detecting any difference between the furnishing by defendant’s libraries of ten copies of one article to one patron, which he then distributes, and giving each of ten patrons one copy of the same article. The damage to the copyright proprietor is the same in either case.
2. The law is well settled, and I believe not questioned by the court in this case, that under Section '3 of the Copyright Act, plaintiff’s copyrights of the journals cover each article contained therein as fully as if each were individually copyrighted. Section 3 expressly mentions periodicals, and for the purpose of determining whether there has been infringement, each copyrightable component is to be treated as a complete work. Markham v. A. E. Borden Co., 206 F. 2d 199, 201 (1st Cir. 1953).
It is undisputed that the photocopies in issue here were exact duplicates of the original articles; they were intended to be substitutes for and they served the same purpose as the original articles. They were copies of complete copyrighted works within the meaning of Sections 3 and 5 of the Copyright Act. This is the very essence of wholesale copying and, without more, defeats the defense of fair use. The rule to be applied in such a situation was stated in Leon v. Pacific Telephone & Telegraph Co., 91 F. 2d 484, 486 (9th Cir. 1937) as follows:
Counsel have not disclosed a single authority, nor have we been able to find one, which lends any support to the proposition that wholesale copying and publication of copyrighted material can ever be fair use.
For other cases to the same effect, see Public Affairs Associates, Inc. v. Rickover, 284 F. 2d 262, 272 (D.C. Cir. 1960), judgment vacated for insufficient record, 369 U.S. Ill *112(1962); Benny v. Loew's Inc., 239 F. 2d 532, 536 (9th Cir. 1956), o/ff'cl by an equally divided court sub nom., Columbia Broadcasting System, Inc. v. Loew's Inc., 356 U.S. 43 (1958) ; Holdredge v. Knight Publishing Corp., 214 F. Supp. 921, 924 (S.D. Cal. 1963). See also M. Nimmer, Nimmer on Copyright §145 at 650-51 (1973 ed.).
Although the majority states that the rule announced in the cases cited above is an “overbroad generalization, unsupported by the decisions 'and rejected by years of accepted practice,” the court cites no decisions in support of its position.
3. I recognize that the doctrine of fair use permits writers of scholarly works to make reasonable use of previously copyrighted material by quotation or paraphrase, at least where the amount of copying is small and reliance on other sources is demonstrated. See, e.g., Rosemont Enterprises, Inc. v. Random House, Inc., 366 F. 2d 303 (2d Cir. 1966), cert. denied, 385 U.S. 1009 (1967); Simms v. Stanton, 75 F. 6,13-14 (C.C.N.D. Cal. 1896). However, I think the basic error in the court’s decision is its holding that the fair use privilege usually granted to such writers should be extended to cover the massive copying and distribution operation conducted by defendant’s libraries. The articles are not reproduced by the libraries to enable them to write other articles in the same field. In fact, booksellers and licensed copiers of plaintiff’s journals sell copies of journal articles to the same class of users and for the same purposes as the copies reproduced by defendant’s libraries.
I do not believe that anyone would contend that the ultimate use of the purchased articles by scientists, doctors, or drug companies would permit the commercial concerns mentioned to reproduce copies without plaintiff’s permission. In an effort to overcome this obstacle, the majority relies in part on the nature and function of the NIH and the NLM and the fact that the articles are reproduced and distributed free of charge. I do not know of any case which holds that an unauthorized reproduction which is made without profit *113amounts to fair use by the infringer, and there are decisions to the contrary.5
Moreover, as plaintiff has pointed out, almost every service provided by Government agencies is financed by appropriated funds and furnished without charge to the recipient. If Congress had intended to relieve Government agencies from liability for copyright infringement whenever the material is copied or otherwise reproduced without charge to the recipient, there would have been no need for the enactment of the 1960 Amendment, now 28 U.S.C. § 1498(b), which gives us jurisdiction of this action.
Defendant also argues that its libraries are entitled to the fair use privilege of scientists, researchers, or scholars, because the libraries act as their agent in making the photocopies at their request. This argument is so far-fetched that the majority balks at embracing it completely. It collides with reality. The libraries installed and operate the reproduction and distribution operation on their own initiative and without any kind of an agreement with the ultimate users of the copies. There is no showing that these alleged— and in the case of NLM generally unknown — principals have any say in the formulation of the policies and practices of the photocopying operation. The libraries decide, without consulting or obtaining the consent of the alleged principals, whether to loan the original of the journals or to provide photocopies. The libraries are no more the agent of the users of the material than are the venders of plaintiff’s magazines and the commercial concerns which are licensed by plaintiff to make and sell copies to doctors and scientists. The essential elements of agency are wholly lacking.
4. The trial judge found that it is reasonable to infer from the evidence that the extensive unauthorized copying of plaintiff’s journal has resulted in some loss of revenue and serves to diminish plaintiff’s potential market for the original *114articles. Since tbe inferences made by tbe trial judge may reasonably be drawn from tbe facts and circumstances in evidence, they are presumptively as correct as bis findings of fact. Bonnar v. United States, 194 Ct. Cl. 103, 109, 438 F. 2d 540,542 (1971). See also Baumgartner v. United States, 322 U.S. 665, 670 (1944); Penn-Texas Corp. v. Morse, 242 F. 2d 243, 247 (7th Cir. 1957). Accordingly, under the standards which we employ for reviewing the findings of our trial judges, I would adopt these findings. Davis v. United States, 164 Ct. Cl. 612, 616-17 (1964); Wilson v. United States, 151 Ct. Cl. 271, 273 (1960).
Although the court states that it rejects the trial determinations as to both actual and potential damage to plaintiff, I think the opinion shows that the court’s conclusion is based primarily on its finding that plaintiff failed to prove actual damages. In so doing, the majority relies heavily on evidence that the plaintiff’s profits have grown faster than the gross national product and that plaintiff’s annual taxable income has increased. This evidence is irrelevant to the economic effects of photocopying the journals in this case, because these periodicals account for a relatively small percent of plaintiff’s total business. Moreover, the extent of plaintiff’s taxable income for the years mentioned does not reflect the effect of defendant’s photocopying of plaintiff’s journals, and particularly the effect it will have on the prospects for continued publication in the future.
By the very nature of an action for infringement, the copyright proprietor often has a difficult burden of proving the degree of injury. It is well established, however, that proof of actual damages is not required, and the defense of fair use may be overcome where potential injury is shown. See, e.g., Henry Holt & Co., Inc. v. Liggett & Myers Tobacco Co., 23 F. Supp. 302, 304 (E.D. Pa. 1938). As Professor Nimmer has stated, the courts look to see whether defendant’s work “tends to diminish or prejudice the potential sale of the plaintiff’s work.” M. Nimmer, Nimmer on Copyright § 145 at 646 (1973 ed.).
The problem posed by library photocopying of copyrighted material has long been a subject of controversy. Several studies of this problem have pointed out that extensive *115pliotocopying by libraries is unfair because of its potential damage to the copyright owner. The trial judge has quoted from the reports of several of these studies.6
In a thorough and thoughtful discussion of the effects of reprography, prepared at the University of California, Los Angeles, and funded by the National Endowment for the Arts, it is stated:
It has long been argued that copying by hand “for the purpose of private study and review” would be a fair use. Users are now asserting that machine copying is merely a substitute for hand copying and is, therefore, a fair use. But this argument ignores the economic differences between the two types of copying. Copying by hand is extremely time consuming and costly, and is not an economic threat to authors. Viewing reprography as though it were hand copying, however, overlooks the effect of the total number of machine copies made. Few people hand copy, but millions find machine copying economical and convenient. Allowing individual users to decide that their machine copying will not injure the author and will thus be a fair use fails to take into account the true economic effect when thousands of such individued decisions are aggregated.
The problem is vividly presented by the practice of the National Library of Medicine. The Library justifies its distribution of reprographic copies of journal articles to biomedical libraries (without permission of the copyright owner) on the basis of a 1939 understanding between publishers and libraries called the “Gentlemen’s Agreement.” Under this agreement photocopies are permitted whenever the user would have made a hand copy himself, the rationale being that no purchases of the author’s work are displaced under these circumstances. When an individual would actually copy by hand, the theory is valid; there is no sound reason to force him to do the work. But many people obtain copies from the library who would not copy by hand, and who might in fact buy a copy of the work if they were un*116able to receive ail inexpensive machine reproduction of it. Thus, the library interprets the Gentlemen’s Agreement in its favor and thereby “justifies” a substantial amount of copying. (Emphasis supplied.) Project, New Technology and the Law of Copyright: Reprography and Computers, 15 U.C.L.A. L. Rev. 931, 951 (1968).
As the majority points out, one study, made in 1962, concluded that photocopying did not result in economic damage to publishers at that time: Fry & Associates, Survey of Copyrighted Material Reproduction Practices in Scientific and Technical Fields, 11 Bull. Cr. Soc. 69, 71 (1963). This study also stated:
One situation was reported during the survey in which economic damage may occur. A prominent university library in a small town with several corporate research ■and development centers gives excellent service on its collection. This library felt that these corporate libraries are subscribing to only the minimum number of journals. They rely on the university to supply photocopies of other material.
# * * * m
This is the one clear-cut example disclosed during the survey of dilution of the publishers’ circulation market. Id. at 119.
Indeed, this example is very nearly the situation presented by this case. Government institutions, medical schools, hospitals, research foundations, drug companies, and individual physicians are supplementing their collections, if they subscribe to any journals, by acquiring free photocopies of articles from the NLM.7
*117In addition to the conclusions of those who have studied the problem extensively, there are other facts and circumstances in this record which I think amply support the views of the trial judge that the system used by defendant’s libraries for distributing free copies of plaintiff’s journal articles attracts some potential purchasers of plaintiff’s journals.
Subscription sales provide most of the revenue derived from the marketing of plaintiff’s journals. It is important to remember that each of plaintiff’s journals caters to and serves a limited market. Plaintiff’s share of the profits from these journals has varied from less than $1,000 to about $7,000 annually.8 In the context of rising costs of publication, an inability to attract new customers, and the loss of even a small number of old subscribers may have a large detrimental effect on the journals. A representative of Williams & Wilkins Company testified that in recent years there have been journals that have f ailed, and in the opinion of those at Williams & Wilkins, photocopying has played a role in these failures.9 The majority relies on the fact that subscriptions for the four journals in this case have shown a general increase over the last five years, but two of the journals, Medicine and Pharmacological Revistos, have shown a slight decrease in subscriptions from 1988 to 1969. In addition, the Journal of Irrmnmology showed losses in the period prior to 1961; Gastroenterology showed losses in 1967 and 1968; Pharmacological Reviews showed a loss in 1969. There is no evidence to show specifically whether any particular instance or instances of unauthorized photocopying of plaintiff’s journals has or has not resulted in the loss of revenue to plaintiff. However, I think the record, as a whole, supports the determination of the trial judge that the photocopying in this case has had a tendency to diminish plaintiff’s markets in the past.
*118The NLM publishes a monthly indexed catalog of journal articles in medicine and related sciences entitled “Index Medicus.” The index is widely distributed to medical libraries, research centers, schools, hospitals, and physicians. The catalog announces its new publications and acquisitions and thus advertises to the medical and scientific community, which constitutes plaintiff’s market, that certain articles are available free of charge in the form of a photocopy.
At the present time, the NIH purchases only two subscriptions to plaintiff’s journals. If nothing else, it would certainly need more than the two copies to meet the requests of the large in-house staff. Although it has been argued that the photocopies are merely a substitute for the loan of an original and does no more harm than the loan of the original material, I think this argument is fallacious. One copy of the original material could not possibly be loaned to as many requesters as the numerous photocopies, the competitive effect of which is much greater. Also, the photocopies are not required to be returned and become the property of the possessor. They can be marked, cut into segments, placed in the files, and otherwise put to uses that would be impossible with a loan of the original. While the library may look at the giving of a photocopy as a substitute for a loan, the user and would-be purchaser gets an exact copy of the original article which is a substitute for a purchased copy.
One of the new sources of income to publishers is the supplying of back issues or providing copies of such issues. When plaintiff receives a request for an out-of-print article, the customer is generally referred to the Institute of Scientific Information, which is licensed by plaintiff to make the photocopies. If the same articles can be obtained from the NLM without charge, it seems obvious that the supplying of free copies. If the same articles can be obtained from the NLM plaintiff’s income from this source. NLM reproduces and supplies copies of journal articles to the patrons of other libraries. Therefore, the libraries who make the requests do not have to buy subscriptions for the use of their own patrons.
*119hi
Foreign Lems Do Not Justify an Exemption From the Copyright Laws
The court relies to some extent on the copyright laws of the United Kingdom, New Zealand, Denmark, Finland, Italy, and other countries. The plaintiff says there are many differences between our copyright laws and those of other countries, and plaintiff does not agree that the defendant would be exempt from liability under the statutes of some of the countries named. However, we need not delve into the details of the copyright legislation of these foreign countries. There is a shorter answer to the court’s reliance on foreign laws. Unlike the legislative bodies of these countries, the Congress has not yet changed the Copyright Act of 1909 to permit the same kind of copying by the NIH and the NLM. If the time has come when the defendant’s libraries should be exempted from the provisions of the Copyright Act to the extent permitted by the court’s decision, the exemption should be provided by legislative action rather than by judicial legislation.
IV
A Judgment for Plaintiff Will Not Injure Medicine and Medical Research
The court has bottomed its decision to a very large extent on its finding, which is not disputed, that medical science would be seriously hurt if the photocopying by defendant’s libraries is entirely stopped. But the court goes further and concludes that a judgment for plaintiff would lead to this result. It is not altogether clear to me how the court arrives at the second conclusion, and I think it is based on unwarranted assumptions.
The plaintiff does not propose to stop such photocopying and does not desire that result. What plaintiff seeks is a reasonable royalty for such photocopying and, in this case, a recovery of reasonable compensation for the infringement of its copyrights. Plaintiff has established a licensing system *120to cover various methods of reproducing its journal articles, including reproduction by photocopying. One of the licensees is a Government agency, and on several occasions plaintiff has granted requests from Government agencies and others for licenses to make multiple copies (Finding 86). In May 1967, the photocopying of plaintiff’s journal articles was monitored by NLM for a 90-day period which was judged to be a representative sample. As the trial judge has shown, NLM found that it would have paid plaintiff from $250 to $300 if it had granted plaintiff’s request for royalty payments. The Director of NLM testified that this was, in his opinion, a surprisingly small sum. He also testified (Part III, trial judge’s opinion) that the payment of a royalty to plaintiff for photocopying “has nothing to do with the operation of the library in the fulfillment of * * * [its] function. It is an economic and 'budgetary consideration and not a service-oriented kind of thing.” This is the only direct testimony that I have found on how the payment of royalties for photocopying will affect the functions of the library, and it gives no indication or intimation that the payment of royalties to plaintiff will force NLM to cease the photocopying.
The court has laid heavy emphasis on the public interest in maintaining a free flow of information to doctors and scientists, and on the injury that might result if this flow should be stopped. However, there is another facet to the public interest question which is presented in this case. The trial judge put it well in his statement:
The issues raised by this case are but part of a larger problem which continues to plague our institutions with ever-increasing complexity — how best to reconcile, on the one hand, the rights of authors and publishers under the copyright laws with, on the other hand, the technological improvements in copying techniques and the legitimate public need for rapid dissemination of scientific and technical literature. (Part III, trial judge’s opinion.)
In enacting the 1909 Act, the House Committee said:
The enactment of copyright legislation by Congress under the terms of the 'Constitution is not based upon any natural right that the author has in his writings *121* * * but upon the ground that the welfare of tbe public will be served and progress of science and useful arts will be promoted by securing to authors for limited periods ■the exclusive rights to their writings. H.R. Rep. No. 2222,60th Cong., 2d Sess. 7 (1909).
In Mazer v. Stein, 347 U.S. 201, 219 (1954), the Supreme Court emphasized that the copyright protection given to authors and publishers is designed to advance public welfare, stating:
“The copyright law, like the patent statutes, makes reward to the owner a secondary consideration. * * *” However, it is “intended definitely to grant valuable, enforceable rights to authors, publishers, etc. * * *” The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in “Science and useful Arts.”
In order to promote the progress of science, not only must authors be induced to write new works, but also publishers must be induced to disseminate those works to the public. This philosophy has guided our country, with limited exceptions, since its beginning, and I am of the opinion that if there is to be a fundamental policy change in this system, such as a blanket exception for library photocopying, it is for the Congress to determine, not for the courts. The courts simply cannot draw the distinctions so obviously necessary in this area.
The court recognizes that the solution which it has undertaken to provide in this case is preeminently a problem for Congress which should decide how much photocopying should be allowed, what payments should be made to the copyright owners, and related questions. Nowhere else in its opinion is the court on more solid ground than when it declares that the “choices involve economic, social, and policy factors which are far better sifted by a legislature. The possible intermediate solutions are also of the pragmatic kind legislatures, not courts, can and should fashion.” In spite of this obviously correct statement, the court has bridged the gap which the inaction of Congress has left in the Copyright Act of 1909.
*122I agree with the court that we have no jurisdiction to order a copyright owner to institute a licensing system if he does not wish to do so, but I think we are equally powerless to assume the congressional role by granting what amounts to a blanket exemption to defendant’s libraries. Without too much difficulty, however, we can determine the amount of just compensation that is due plaintiff for the infringement of its copyrights. If that should be done, it may very well lead to a satisfactory agreement between the parties for a continuation of the photocopying by defendant upon the payment of a reasonable royalty to plaintiff.
The following portions of the trial judge’s opinion are made a part of this dissent :*
I
Plaintiff, though a relatively small company, is a major publisher of medical journals and books. Plaintiff publishes 37 journals, dealing with various medical specialties. The four journals in suit are Medicine, Journal of Immmwlogy, Gastroenterology, and Pharmacological Reviews. Medióme is published by plaintiff for profit and for its own benefit. The other three journals are published in conjunction with specialty medical societies which, by contract, share the journals’ profits with plaintiff. The articles published in the journals stem from manuscripts submitted to plaintiff (or one of the medical societies) by physicians or other scientists engaged in medical research. The journals are widely disseminated throughout the United States (and the world) in libraries, schools, physicians’ offices, and the like. Annual subscription prices range from about $12 to $44; and, due to the esoteric nature of the journals’ subject matter, the number of annual subscriptions is relatively small, ranging from about 3,100 (Pharmacological Reviews) to about 7,000 (iGastroenterology). Most of the revenue derived from the journals comes from subscription sales, though a small part comes from advertising.4 The journals are published with *123notice of copyright in plaintiff’s name. The notice appears at the front of the journal and sometimes at the beginning of each article. After publication of each journal issue (usually monthly or bimonthly) and after compliance with the requisite statutory requirements, the [Register of Copyrights issues to plaintiff certificates of copyright registration.
NIH, the Government’s principal medical research organization, is a conglomerate of institutes located on a multi-acre campus at Bethesda, Maryland. Each institute is concerned with a particular medical specialty, and the institutes conduct their activities by way of both intramural research and grants-in-aid to private individuals and organizations. NIH employs over 12,000 persons — 1,000 are science professionals and 2,000 have doctoral degrees. To assist its intramural programs, NIH maintains a technical library. The library houses about 150,000 volumes, of which about 30,000 are books and the balance scientific (principally medical) journals. The library is open to the public, but is used mostly by NIH in-house research personnel. The library’s budget for 1970 was $1.1 million.
The NIH library subscribes to about 3,000 different journal titles, four of which are the journals in suit. The library subscribes to two copies of each of the journals in suit. As a general rule, one copy stays in the library reading room and the other copy circulates among interested NIH personnel. Demand by NIH research workers for access to plaintiff’s journals (as well as other journals to which the library subscribes) is usually not met by in-house subscription copies. Consequently, as an integral part of its operation, the library runs a photocopy service for the benefit of its research staff. On request, a researcher can obtain a photocopy of an article from any of the journals in the library’s collection. Usually, researchers request photocopies of articles to assist them in their on-going projects; sometimes photocopies are requested simply for background reading. In any event, the library does not monitor the reason for requests or the use to which the photocopies are put. The photocopies are not returned to the library; and the record shows that, in most instances, researchers keep them in their private files for future reference.
*124Four regularly assigned employees operate the NIH photocopy equipment. The equipment consists of microfilm cameras and Xerox copying machines. In 1910, the library photocopy budget was $86,000 and the library filled 85,744 requests for photocopies of journal articles (including plaintiff’s journals), constituting about 980,000 pages. On the average, a journal article is 10 pages long, so that in 1970, the library made about 93,000 photocopies of articles.
NLM is located on the Bethesda campus of NIH. NLM was formerly the Armed Forces Medical Library. In 1956, Congress transferred the library from the Department of Defense to the Public Health Service (renaming it the National Library of Medicine), and declared its purpose to be “* * * to aid the dissemination and exchange of scientific and other information important to the progress of medicine and to the public health * * 42 U.S.C. § 275 (1970). NLM is a repository of much of the world’s medical literature. NLM is in essence a “librarians’ library.” As part of its operation, NLM cooperates with other libraries and like research-and-education-oriented institutions (both public and private) in a so-called “interlibrary loan” program. Upon request, NLM will loan to such institutions, for a limited time, books and other materials in its collection. In the case of journals, the “loans” usually take the form of photocopies of journal articles which are supplied by NLM free of charge and on a no-retum basis. The term “loan” therefore is a euphemism when journal articles are involved. NLM’s loan policies are fashioned after the General Interlibrary Loan Code, which is a statement of self-imposed regulations to be followed by all libraries which cooperate in interlibrary loaning. The Code provides that each library, upon request for a loan of materials, shall decide whether to loan the original or provide a photoduplicate. The Code notes that photoduplication of copyrighted materials may raise copyright infringement problems, particularly with regard to “photographing whole issues of periodicals or books with current copyrights, or in making multiple copies of a publication.” [Emphasis in original text.] NLM, therefore, will provide only one photocopy of a particular article, per request, and will not photocopy on 'any given request an entire journal issue. NLM, as well as other libraries, justifies *125this practice on the basis of a so-called “gentlemen’s agreement,” written in 1935 by the National Association of Book Publishers and the Joint Committee on Materials for Research (representing the libraries), which states in part, “A library * * * owning books or periodical volumes in which copyright still subsists may make and deliver a single photographic reproduction * * * of a fart thereof to a scholar representing in writing that he desires such reproduction in lieu of loan of such publication or in place of manual transcription and solely for the purposes of research * * [Emphasis supplied.] Each photocopy reproduced by NLM contains a statement in the margin, “This is a single photostatic copy made by the National Library of Medicine for purposes of study or research in lieu of lending the original.”
In 1968, a representative year, NLM received about 127,000 requests for interlibrary loans. Requests were received, for the most part, from other libraries or Government agencies. However, about 12 percent of the requests came from private or commercial organizations, particularly drug companies. Some requests were for books, in which event the book itself was loaned. Most requests were for journals or journal articles; and about 120,000 of the requests were filled by photocopying single articles from journals, including plaintiff’s journals. Usually, the library seeking an interlibrary loan from NLM did so at the request of one of its patrons. If the “loan” was made by photocopy, the photocopy was given to the patron who was free to dispose of it as he wished. NLM made no effort to find out the ultimate use to which the photocopies were put; and there is no evidence that borrowing libraries kept the “loan” photocopies in their permanent collections for use by other patrons.
Defendant concedes that within the pertinent accounting period, NLM and the NIH library made at least one photocopy of each of eight articles (designated by plaintiff as the Count I-to-Count VIII articles) from one or more of the four journals in suit. Defendant also concedes that plaintiff is the record owner of copyright registrations on the journals. That would appear to end the matter in plaintiff’s favor, for § 1 of the copyright statute (17 U.S.C.) says that the copyright owner “* * * shall have the exclusive right: (a) to *126print, reprint, publish., copy and vend the copyrighted work * * and § 3 of the statute says that, “* * * [t]he copyright upon composite works or periodicals shall give to the proprietor thereof all the rights in respect thereto which he would have if each part were individually copyrighted under this title.” Simply stated, this means that each article in plaintiff’s journals is protected from infringement to the same extent as the entire journal issue. Advertisers Exch., Inc. v. Laufe, 29 F. Supp. 1 (W.D. Pa. 1939); King Features Syndicate v. Fleischer, 299 F. 533 (2d Cir. 1924) .5
The noninfringement defense
Defendant contends that its acts of copying do not violate the copyright owner’s exclusive right “to copy” the copyrighted work as provided by 17 U.S.C. § 1. The argument is that with respect to books and periodicals, the act of making single copies (i.e., one copy at a time) is not, in itself, sufficient to incur liability; that the “copying,” to be actionable, must include “printing” (or “reprinting”) and “publishing” of multiple copies of the copyrighted work. The argument is bottomed on analysis of the copyright laws as they have evolved from 1790 to the present.8 The early laws distinguished “copying” from “printing,” “reprinting,” and “publishing,” and provided that the copyright in books is infringed by “printing,” “reprinting” and “publishing” while the copyright in other works (e.g., photographs, paintings, drawings, etc.) is infringed by “copying.” The 1909 Copyright Act obliterated any such distinction. It provides in § 5 a list of all classes of copyrightable subject matter (including books and periodicals), and says in § 1 that the owner *127of copyright shall have the exclusive right “to print, reprint, publish, copy and vend the copyrighted work” [emphasis supplied]. Thus, the 1909 Act, unlike the earlier statutes, does not expressly say which of the proscribed acts of § 1 apply to which classes of copyrightable subject matter of § 5. Defendant says that to be consistent with the intent and purpose of earlier statutes, the “copying” proscription of § 1 should not apply to books or periodicals; rather, only the proscribed acts of “printing,” “reprinting” and “publishing” should apply to books and periodicals.
Defendant’s argument is not persuasive and, in any event, is irrelevant. It is clear from a study of all the copyright statutes from 1790 to date that what Congress has sought to do in every statute is to proscribe unauthorized duplication of copyrighted works. The words used in the various statutes to define infringing acts (i.e., printing, reprinting, copying, etc.) were simply attempts to define the then-current means by which duplication could be effected. It is reasonable to infer that in 1909, when Congress included “copying” in the list of proscribed acts applicable to books and periodicals (as well as copyrightable subject matter in general), it did so in light of the fact that new technologies (e.g., photography) made it possible to duplicate books and periodicals by means other than “printing” and “reprinting.” The legislative history of the 1909 Act says little, one way or the other, about the matter.9 Nevertheless, §§ 1 and 5 are plain and unambiguous on their face; and the Supreme Court held as recently as 1968, in Fortnightly Corp., supra at 394:
* * * § 1 of the [Copyright] Act enumerates several “rights” that are made “exclusive” to the holder of the copyright. If a person, without authorization from the copyright holder, puts a copyrighted work to a use withm the scope of one of these “ exclusive rights,” he infHnges the copyright. [Emphasis supplied.]
*128See also the 1961 Register’s Report, wherein it is noted at 21-22:
* * * as several courts have observed, the right embraced in the repetitive terms of section 1(a) is the twofold right to make and publish copies.
This right is the historic basis of copyright and pertains to all categories of copyrighted works. * * * [Emphasis supplied.)
The burden, therefore, is on defendant to show that Congress intended the statute to mean something other than what it plainly says. Defendant has not carried that burden.
It is also pertinent that the courts have liberally construed the 1909 Act to take into account new technologies by which copyrighted works can be duplicated, and thus infringed. In Fortnightly Corp., supra at 395-96, the Court, in dealing with copyright infringement relating to television, said:
In 1909, radio itself was in its infancy, and television had not been invented. We read the statutory language of 60 years ago in the light of drastic technological change. [Emphasis supplied.)
To the same effect is Jerome H. Remick & Co. v. American Automobile Accessories Co., 5 F. 2d 411 (6th Cir. 1925), cert. denied, 269 U.S. 556, which stated at 411:
* * * the statute may be applied to new situations not anticipated by Congress, if, fairly construed, such situations come within its intent and meaning. Thus it has been held both in this country and England that a photograph was a copy or infringement of a copyrighted engraving under statutes passed before the photographic process had been developed, [citations omitted] While statutes should not be stretched to apply to new situations not fairly within their scope, they should not be so narrowly construed as to permit their evasion because of changing habits due to new inventions and discoveries.
Furthermore, defendant’s argument that it may “copy,” short of “printing,” “reprinting” and “publishing,” is irrelevant under the facts of this case. NLM and the NIH library did not merely “copy” the articles in suit; they, in effect, “reprinted” and “published” them. “Printing” and “reprinting” connote making a duplicate original, whether by printing press or a more modern method of duplication. Macmillan Co. v. King, 223 F. 862 (D. Mass. 1914); M. Nimmer, *129Copyright § 102 (1971 ed.). “Publishing” means disseminating to others, which defendant’s libraries clearly did when they distributed photocopies to requesters and users. Macmillan Co., supra; M. Nimmer, Copyright § 104 (1971 ed.).
Defendant’s contention that its libraries make only “single copies” of journal articles, rather than multiple copies, is illusory and unrealistic. Admittedly, the libraries, as a general rule, make only one copy per request, usually for different users. But the record shows that the libraries duplicate particular articles oyer and over again, sometimes even for the same user within a short timespan. E.g.. the NIH library photocopied the Count I article three times within a 3-month period, two of the times for the same requester; and it copied the Count IY and Count V articles twice within a 2-month period, albeit for different users. The record also shows that NLM will supply to requesters photocopies of the same article, one after the other, on consecutive days, even with knowledge of such facts. In short, the libraries operate comprehensive duplication systems which provide every year thousands of photocopies of articles, many of which are copies of the same article; and, in essence, the systems are a reprint service which supplants the need for journal subscriptions. The effects of this so-called “single copying” practice on plaintiff’s legitimate interests as copyright owner are obvious. The Sophar and Efoilprin report, at 16, puts it in terms of a colorful analogy: “Babies are still born one at a time, but the world is rapidly being overpopulated.”
The “fair use” defense
Defendant contends that its copying comes under the doctrine of “fair use” of copyrighted works. “Fair use,” a judicially-created doctrine, is a sort of “rule of reason” applied by the courts as a defense to copyright infringement when the accused infringing acts are deemed to be outside the legitimate scope of protection afforded copyright owner's under 17 U.S.C. § 1. What constitutes “fair use” cannot be defined with precision. Much has been written about the doctrine, particularly its rationale and scope. See, e.g., A. LatmaN, Fair Use or Copyrighted Works, Study No. 14, Copyright Law Bevision, Studies Prepared por Sehate Comm, on the Judiciary, 86th Cong., 2dSess. (1960); Comment, Copyright
*130Fair Use — Case Law and Legislation, 1969 Duke L.J. 73; S. Cohen, Fair Use and the Law oe Copyright, ASCAP Copyright Law Symposium (No. 6) 43 (1955); W. Jensen, Fair Use: As Viewed by the “User," 39 Dicta 25 (1962); L. Yankwich, What Is Fair Use?, 22 U. Chi. L. Rev. 203 (1954); Note, Fair Use: A Controversial Topic in the Latest Revision of Our Copyright Law, 34 U. Cin. L. Rev. 73 (1965); M. Nimmer, Copyright § 145 (1971 ed.); Sophar & HeilpeiN Report at 15; R. Heedham, Tape RecordING, PhoTOCOPYING AND FAIR ÜSE, ASCAP COPYRIGHT LAW SYMPOSIUM (No. 10) 75 (1959); Crossland, The Rise and Fall of Fair Use: The Protection of Literary Materials Against Copyright Infringement by New and Developing Media, 20 S. Car. L. Rev. 153 (1968). Some courts have held that the doctrine is but an application of the principle de minimis non curat lex and, as plaintiff puts it, “comes into p'lay only when a relatively small amount of copying takes place.” Principal factors considered by the courts in deciding whether a particular use of a copyrighted work is a “fair use” are (a) the purpose of the use, (b) the nature of the copyrighted work, (c) the amount and substantiality of the material used in relation to the copyrighted work as a whole, and (d) the effect of the use on a copyright owner’s potential market for his work.10 While these criteria are interrelated and may vary in relative significance, the last one, i.e., the competitive character of the use, is often the most important. E.g., it has been held “fair use” to copy excerpts from literary works for
purposes of criticism or review (Loew’s, Inc. v. CBS, Inc., 131 F. Supp. 165, 105 USPQ 302 (S.D. Cal. 1955), aff'd sub nom. Benny v. Loew’s, Inc., 239 F. 2d 532, 112 USPQ 11 (9th Cir. 1956), aff'd by an egually divided Court, 356 U.S. 43 (1958)); or to copy portions of scholarly works (Greenbie v. Noble, supra; Holdredge v. Knight Publishing Corp., 214 F. Supp. 921, 136 USPQ 615 (S.D. Cal. 1963)). However, it is not “fair use” to copy substantial portions of a copyrighted work when the new work is a substitute for, and diminishes the potential market for, the original. Hill v. *131Whalen & Martell, Inc., 220 F. 359 (S.D.N.Y. 1914); Folsom v. Marsh, 9 F. Cas. 342 (D. Mass. 1841). And it has been held that wholesale copying of a copyrighted work is never “fair use” (Leon v. Pacific Tel. & Tel. Co., 91 F. 2d 484, 34 USPQ 237 (9th Cir. 1987); Public Affairs Associates, Inc. v. Rickover, 284 F. 2d 262, 127 USPQ 231 (D.C. Cir. 1960), vacated and remanded, 369 U.S. 111 (1962)), even if done to further educational or artistic goals and without intent to make profit. Wihtol v. Crow, 309 F. 2d 777, 135 USPQ 385 (8th Cir. 1962).
Whatever may be the bounds of “fair use” as defined and applied by the courts, defendant is clearly outside those bounds. Defendant’s photocopying is wholesale copying and meets none of the criteria for “fair use.” The photocopies are exact duplicates of the original articles; are intended to be substitutes for, and serve the same purpose as, the original articles; and serve to diminish plaintiff’s potential market for the original articles since the photocopies are made at the request of, and for the benefit of, the very persons who constitute plaintiff’s market. Defendant says, nevertheless, that plaintiff has failed to show that it has been harmed by unauthorized photocopying; and that, in fact, plaintiff’s journal subscriptions have increased steadily over the last decade. Plaintiff need not prove actual damages to make out its case for infringement. Macmillan Go., supra. Section 1498 of title 28 U.S.C. provides for payment of “reasonable and entire compensation * * * including minimum statutory damages as set forth in section 101(b) of title 17, United States Code.” See Brady v. Daly, 175 U.S. 148 (1899); F. W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228 (1952). M. Nimmer, Copyright § 154 (1971 ed.). Moreover, damage may be inferred in this case from the fact that the photocopies are intended to supplant the original articles. While it may be difficult (if not impossible) to determine the number of subscription sales lost to photocopying, the fact remains that each photocopy user is a potential subscriber, or at least is a potential source of royalty income for licensed copying. Plaintiff has set up a licensing program to collect royalties for photocopying articles from its journals; and among the licensees have been libraries, including a *132Government library.11 Also, there is evidence that one subscriber canceled a subscription to one of plaintiff’s journals because the subscriber believed the cost of photocopying the journal had become less than the journal’s annual subscription price; and another subscriber canceled a subscription, at least in pail; because library photocopies were available. Loss of subscription (or photocopying royalty) income is particularly acute in the medical journal field. The record shows that printing preparation costs are 50-65 percent of total cost of publication and that the number of subscriptions is relatively small. This simply means that any loss of subscription sales (or royalty income) has the effect of spreading publication costs over fewer copies, thus driving up steeply the unit cost per copy and, in turn, subscription prices. Higher subscription prices, coupled with cheap photocopying, means probable loss of subscribers, thus perpetuating a vicious cycle which can only bode ill for medical publishing.
Defendant’s amici fear that a decision for plaintiff will be precedent for plaintiff’s seeking injunctions against non-Government libraries, pursuant to 17 TJ.S.C. § 101(a), thereby interfering with the free flow of technical and scientific information through library photocopying. On the basis of this record and representations made by plaintiff’s personnel and counsel, that fear does not appear to be justified. Plaintiff does not seek to enjoin any photocopying of its journals. Bather, it merely seeks a reasonable royalty therefor.12 Its *133licensing program would so indicate for, as far as the record shows, plaintiff will grant licenses to anyone at a reasonable royalty. No doubt, plaintiff would prefer that all of its journal users be subscribers. However, plaintiff recognizes that this is unrealistic. Some articles in its journals are in greater demand than others, and many journal users will not consider it economically justifiable to subscribe to a journal simply to get access to a few articles. Implicit in plaintiff’s licensing program, therefore, is the idea that it is in the best interest of all concerned that photocopying proceed without injunction, but with payment of a reasonable fee. That would appear to be a logical and commonsense solution to the problem, not unlike the solution provided by the American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI) in the field of music and the performing arts. For a description of how ASCAP and BMI operate in a contest similar to this one, see Hearings on H.R. l¡31f7 and other bills before Subcomm. No. 3, House Oomm. on the Judiciary, 89th Cong., 1st Sess. 194, 203 (1965); Finkelstein, ASCAP as an Example of the Olearimg House System in Operation, 14 Copyright Soc’t Bull. 2 (1966).
Defendant says that photocopying by NLM and the NIH library is “reasonable and customary” because it complies with a longstanding practice of libraries to supply photocopies of parts of scientific works to persons engaged in scholarly research, and is consistent with the terms of the “gentlemen’s agreement,” earlier noted. The “gentlemen’s agreement,” drafted in 1935, was the product of meetings and discussions between representatives of the book publishing industry and libraries. The representatives were interested in working out a practical accommodation of the conflict between (a) the legitimate interests of copyright owners not to have their works copied without compensation and (b) the needs of scholars and research workers for copies of parts of copyrighted works for private use in pursuit of literary or scientific investigation. The “agreement” was, in effect, a promise by the book publishers not to interfere *134with library photocopying under three conditions: (i) the library must warn the person for whom the photocopy is made that he is liable for any copyright infringement by misuse (presumably by making further photocopies), (ii) the photocopying must be done without profit to the library, and (iii) the amount copied must not be so substantial as to constitute an infringement. The third condition is implicit in the “agreement” which says:
While the right of quotation without permission is not provided in law, the courts have recognized the right to a “fair use” of book quotations, the length of a “fair” quotation being dependent upon the type of work quoted from and the “fairness” to the author’s interest. Extensive quotation is obviously mimical to the author’s interest. * * * It would not be fair to the author or publisher to make possible the substitution of the photostats for the purchase of a copy of the book itself either for am, individual library or for any permanent collection in a public or research library. Orders for photocopying which, by reason of their extensiveness or for any other reasons, violate this principle should not be accepted. [Emphasis supplied.]
The “gentlemen’s agreement” does not have, nor has it ever had, the force of law with respect to what constitutes copyright infringement or “fair use.” So far as this record shows, the “agreement” has never been involved in any judicial proceedings. Nevertheless, the “agreement” is entitled to consideration as a guide to what book publishers and libraries considered to be “reasonable and customary” photocopying practices in the year 1935. It has little significance, however, to this case. The agreement was drafted on behalf of a book publishers’ organization which is now defunct and to which plaintiff never belonged. In fact, it appears that no periodical publishers were represented in the organization at the time the agreement was drafted; and, consequently, the “agreement” cannot speak for their interests or problems. See the Varmer study at 51, n. 9. Furthermore, the “agreement” was drafted at a time when photocopying was relatively expensive and cumbersome; was used relatively little as a means of duplication and dissemination; and posed no substantial threat to the potential market for copyrighted works. Beginning about 1960, photocopying changed char*135acter. The introduction to the marketplace of the office copying machine made photocopying rapid, cheap and readily available. The legitimate interests of copyright owners must, accordingly, be measured against the changed realities of technology. Professor Nimmer in his treatise Copyright capsules the point at 653:
Both classroom and library reproduction of copyrighted materials command a certain sympathy since they involve no commercial exploitation and more particularly in view of their socially useful objectives. What this overlooks is the tremendous reduction in the value of copyrighted works which must result from a consistent and pervasive application of this practice. One who creates a work for educational purposes may not suffer greatly by an occasional unauthorized reproduction. But if every school room or library may by purchasing a single copy supply a demand for numerous copies through photocopying, mimeographing or similar devices, the market for copyrighted educational materials would be almost completely obliterated. This could well discourage authors from creating works of a scientific or educational nature. If the ‘progress of science and useful arts’ is promoted by granting copyright protection to authors, such progress may well be impeded if copyright protection is largely undercut in the name of fair use. [Emphasis supplied.]
In any event, the “gentlemen’s agreement” by its own terms condemned as “not * * * fair” the making of photocopies which could serve in “substitution” for the original work, and further noted that “[ojrders for photo-copying which, by reason of their extensiveness or for any other reasons” could serve as duplicates of the original copyrighted work “should not be accepted.” Thus, the most that can be said for the “gentlemen’s agreement” is that it supported (and probably still supports) the proposition that it is “reasonable and customary” (and thus “fair use”) for a library to photocopy for a patron a part of a book, or even part of a periodical article, such as a chart, graph, table, or the like, so long as the portion copied is not practically a substitute for the entire original work. Other instances of library photocopying may also be “fair use.” E.g., a library no doubt can replace damaged pages of copyrighted works in its collection with photocopies ; can make a small number of photocopies for in-house *136administrative purposes, such as cutting up for cataloging or the like; or can supply attorneys or courts with single photocopies for use in litigation. In all those instances, and probably many more which might come to mind on reflection, the rights of the copyright owner are not materially harmed. The doctrine of “fair use” and the “gentlemen’s agreement,” however, cannot support wholesale copying of the kind here in suit.13
Defendant also contends that traditionally, scholars have made handwritten copies of copyrighted works for use in research or other scholarly pursuits; that it is in the public interest that they do so because any harm to copyright owners is minimal compared to the public benefits derived therefrom ; and that the photocopying here in suit is essentially a substitute for handeopying by the scholars themselves. That argument is not persuasive. In the first place, defendant concedes that its libraries photocopy substantially more material than scholars can or do copy by hand. Implicit in such concession is a recognition that laborious handcopying and rapid machine photocopying are totally different in their impact on the interests of copyright owners. Furthermore, there is no case law to support defendant’s proposition that the making of a handcopy by scholars or researchers of an entire, copyrighted work is permitted by the copyright laws. Certainly the statute does not expressly permit it; and no doubt the issue has never been litigated because, as a practical matter, such copying is de minimis and causes no real threat to the copyright owner’s legitimate right to control duplication and dissemination of copyrighted works. The photocopying done by NLM and the NIH library, on the other hand, poses a real and substantial threat to copyright owners’ legitimate interests. Professor Nimmer discusses the point succinctly, at 653-54 of his treatise, and his language can hardly be improved upon:
It may be argued that library reproduction is merely a more modern and efficient version of the time-honored practice of scholars in making handwritten copies of *137copyrighted, works, for their own private use. In evaluating this argument several factors must be considered. In the first place, the drudgery of making handwritten copies probably means that such copies in most instances are not of the complete work, and the quantitative insignificance of the selected passages are such as generally not to amount to a substantial similarity. Secondly, there would appear to be a qualitative difference between each individual scholar performing the task_of reproduction for himself, and a library or other institution performing the task on a wholesale basis for all scholars. If the latter is fair use, then must not the same be said for a non-profit publishing house that distributes to scholars unauthorized copies of scientific and educational works on a national or international basis ? Finally, it is by no means clear that the underlying premise of the above argument is valid.
There is no reported case on the question of whether a single handwritten copy of all or substantially all of a protected work made for the copier’s own private use is an infringement or fair use. If such a case were to arise the force of custom might impel a court to rule for the defendant on the ground of fair use. Such a result, however, could not be reconciled with the rationale for fair use suggested above since the handwritten copy would serve the same function as the protected work, and would tend to reduce the exploitation value of such work. Moreover, if such conduct is defensible then is it not equally a fair use for the copier to use his own photocopying or other duplicating device to achieve the same result? Once this is acknowledged to be fair use, the day may not be far off when no one need purchase books since by merely borrowing a copy from a library any individual will be able to make his own copy through photocopying or other reproduction devices which technological advances may soon make easily and economically available.
To the same effect is a statement in the Yarmer study at 62-63:
It has long been a matter of common practice for individual scholars to make manual transcriptions of published material, though copyrighted, for their own private use, and this practice has not been challenged. Such transcription imposed its own quantitative limitations; and in the nature of the event, it would not be feasible for copyright owners to control private copying and use. But reproduction for private use takes *138on different dimensions when made by modem photocopying devices capable of reproducing quickly any volume of material in any number of copies, and when copies are so made to be supplied to other persons. Publisher’s copies are bought for the private use of the buyer, and in some circumstances a person supplying copies to others will be competing with the publisher and diminishing his market.
Not only is such competition unfair to the publisher and copyright owner, but it may be injurious to scholarship and research. Thus, it has been pointed out that widespread photocopying of technical journals might so diminish me volume of subscriptions for the journals as to force the suspension of their publication.
Also, the 1961 Register’s Report notes at 25-26:
Researchers need to have available, for reference and study, the growing mass of published material in their particular fields. This is true especially, though not solely, of material published in scientific, technical, and scholarly journals. Researchers must rely on libraries for much of this material. When a published copy in a library’s collections is not available for loan, which is very often the case, the researcher’s need can be met by a photocopy.
On the other hand, the supplying of photocopies of any work to a substantial number of researchers may diminish the copyright owner’s market for the work. Publishers of scientific, technical, and scholarly works have pointed out that their market is small; and they have expressed the fear that if many of their potential subscribers or purchasers were furnished with photocopies, they might be forced to discontinue publication.
Finally, defendant says that it is unconstitutional to construe the copyright law so as to proscribe library photocopying of scientific or technical writings because such photocopying is consonant with the constitutional purpose of copyright “to promote the progress of science.” That argument misses the mark. Article I, section 8, clause 8, of the TJ.S. Constitution grants to Congress the “Power * * * To Promote the Progress of Science * * * by securing for limited Times to Authors * * * the exclusive Right to their * * * Writings * * The word “Science” is used in the sense of general knowledge rather than the modern sense of physical or biological science. See Rich, Principles of Patentability, 28 Geo. Wash. L. Rev. 393,394-97 (1960); H.R. Rep. No. 1923,82d Cong., 2d Sess. 4 *139(1952); S. Bep. No. 1979,82d Cong., 2d Sess. 3 (1952). Congress has exercised its constitutional power by enacting, and revising from time to time, copyright statutes which are the method of, and provide a system for, achieving the constitutional purpose. The system “promotes progress” by encouraging authors to write and publicly disclose their writings; by inducing publishers and entrepreneurs to invest risk capital in the dissemination of authors’ writings; and by requiring other authors to create new writings, rather than plagiarize the old, all of which is in the public interest. Mazer v. Stein, 347 U.S. 201, 219 (1954), rehearing denied, 347 U.S. 949. Congress has broad discretion under the Constitution to prescribe the conditions under which copyright will be granted, the only express restriction being that any “exclusive right” must be for a “limited time.” Nothing in the present statute, its legislative history or the case law suggests that Congress intended to exempt libraries or others from liability for wholesale copying of copyrighted works, whatever be the purpose or motivation for the copying. What defendant really appears to be arguing is that the copyright law should excuse libraries from liability for the kind of photocopying here in suit. That, of course, is a matter for Congress, not the courts, to consider for it involves questions of public policy aptly suited to the legislative process. In an analogous context in Fortnightly Corp., supra, Justice Fortas noted at 408:
The task of caring for CATV is one for the Congress. Our ax, being a rule of law, must cut straight, sharp, and deep; and perhaps this is a situation that calls for the compromise of theory and for the architectural improvisation which only legislation can accomplish.
See also White-Smith Music Co., supra, where the Court noted at 18, that “considerations [of what the copyright laws should provide] properly address themselves to the legislative and not the judicial branch of the Government.”14
*140in
Several other points raised by the parties merit comment. Defendant notes that the National Library of Medicine Act by which NLM was created (42 U.S.C. § 275, eb seq.) provides at § 276 (a) (4) that the Secretary of Health, Education, and Welfare, through NLM, shall “make available, through loans, photographic or other copying procedures or otherwise, such materials in the library as he deems appropriate * * *”; and that the Medical Library Assistance Act of 1965 (42 U.S.C. § 280b-l, et seq.) provides that grants be made to medical libraries for, among other things, “acquisition of duplicating devices, facsimile equipment * * * and other equipment to facilitate the use of the resources of the library.” 42 U.S.C. 280b-7. Defendant suggests that by those statutory provisions Congress intended to exempt NLM and other grantee libraries from the copyright laws. As defendant puts it, “ * * * the only reasonable interpretation [of the statutes] is that Congress knew that fair use would exempt such libraries from copyright infringement in the established use by libraries of such [photocopy] equipment.” There is no merit to this. Nothing in the statutes or their legislative histories says anything about the copyright laws, and it cannot be inferred that Congress intended the statutes to be in derogation of the copyright laws, absent an express indication to the contrary.16 See generally E. Crawford, Statutory CONSTRUCTION § 227 (1940). No court has ever held that “fair use” applies to library wholesale photocopying; nor has there been a uniform and unchallenged policy among libraries and other institutionalized photocopiers on the bounds of “fair use.” See note 11. Thus, it makes no sense to impute to Congress an intent for which there is no sound basis in judicial decision, or otherwise. The fact that the statutes authorize the libraries to make use, generally, of photocopying equipment and procedures, is not controlling or even very significant. Much material in library collections is either not *141copyrighted or is material oil which the copyright has expired; and in either event, the material is in the public domain and can be freely copied.
Furthermore, the record shows that NLM, from the beginning, has been concerned about complying with the copyright laws and has never considered itself exempt therefrom. In 1957, NLM’s Board of Regents discussed the library’s photocopying practices and deemed them to create vexing copyright infringement problems. The Director of NLM was of the opinion that “sooner or later” the problems would bring “a test of the issue in the courts. ”
Defendant suggested at trial that payment of compensation to plaintiff for photocopying its journals would create a continuing undue and oppressive administrative and financial burden on NLM and the NIH library. Defendant has not pressed the point in its brief, perhaps because it is clear that plaintiff’s right to compensation under 28 U.S.C. § 1498(b) cannot depend on the burdens of compliance. Nevertheless, defendant’s point merits comment since courts should be mindful of the practical consequences of their' decisions. Based on this record, defendant’s fears are not justified. Both NLM and the NIH library already have administrative procedures by which they keep detailed records of photocopying. Both libraries require that written request slips be submitted by requesters of photocopies. The slips are a permanent record of the journals and pages photocopied. It would seem a routine, albeit tedious, matter to cull from those records the information necessary to calculate a reasonable royalty on the basis of the number of articles copied, or perhaps to come up with an acceptable formula for establishing a blanket annual royalty payment. Indeed, the evidence suggests that this is so. . In 1967, NLM temporarily stopped photocopying articles from plaintiff’s journals, as a result of plaintiff’s charge of copyright infringement and requests for a reasonable royalty. NLM was able, as a practical matter, to flag all requests for photocopies from plaintiff’s journals from April 27,1967 to May 29,1967, in order to refrain from copying them. On about May 29, 1967, photocopying was resumed and was monitored for about 90 days. *142Satisfied that the 90-day period was a representative sample, NLM found that it would have paid plaintiff about $250-$300 if it had acceded to plaintiff’s request for royalty payment. The Director of NLM testified that, in his opinion, this was “a very small sum — surprisingly small sum.” Similarly, the NIH librarian testified that payment of royalties for photocopying “has nothing to do with the operation of the library in the fulfillment of * * * [its] function. It is an economic and budgetary consideration and not a service-oriented kind of thing.”
Nor does it appear that payment of royalties to other publishers will create an undue or oppressive administrative burden. The Sophar and Heilprin report notes, at 58-60, that based on a study of the photocopying practices of U.S. libraries, less than 1,000 publishers provide the material photocopied by libraries, and that about 5 percent of that number provide about 40 percent of the material copied. This simply means that nearly half of the materials photocopied emanate from about 50 publishers. No doubt, the materials photocopied by NLM and the NIH library come from an even smaller number of publishers since those libraries are highly specialized. In any event, by using modern management practices including computers and the like, it would appear that NLM and the NIH library can, with minimum disruption, cope with the necessary recordkeeping.17
Postscript: The issues raised by this case are but part of a larger problem which continues to plague our institutions *143with ever-increasing complexity — how best to reconcile, on the one hand, the rights of authors and publishers under the copyright laws with, on the other hand, the technological improvements in copying techniques and the legitimate public need for rapid dissemination of scientific and technical literature. The conflict is real; the solution not simple. Legislative guidelines seem appropriate.18 The Sophar and Heil-prin report, at pp. vm-ix of the Summary, capsules the problem in a statement worth quoting:
From the viewpoint of the information scientist, copyright may appear as an impediment to the most efficient flow of information. It is apparently a blockage in an information system. Our early tendency was to oppose and try to limit the protection and control granted in copyright for the sake of efficiency. After careful analysis wo no longer do.
There is a philosophical reason for not wanting to see copyright destroyed and there are a number of practical reasons. The philosophical reason is simply a belief that copyright is one of a number of ways in which our society expresses its belief and hope that an individual can continue his identity in a world of mass efforts by assuring the individual, his publisher or his association sufficient income from his ideas to maintain a degree of independence. The erosion of the economic value of copyright must lead to federal support of all kinds of writing and, of course, control.
The practical reasons flow from the philosophical reasons. Publishers, non-profit as well as commercial, will simply not be able to continue publishing under an eroded system. The scientific and other professional societies which, through their memberships, have done the most to develop information-handling tools and media are the ones most hurt by them. A means must be developed to assure payment to the copyright owner in return for unlimited and uncontrolled access to and duplication of the copyrighted work.
*144Our only concern and “vested interest” in copyright since we became interested in the problem “is to find a way to protect the ‘exclusive Eight’ of an author to his ‘Writings,’ while permitting the advantages of modern information dissemination systems to become as useful as they may without weakening or threatening the economic urge and the need to create.” We believe the two must become reconciled, not in the interests of compromise, but simply because both concepts are too valuablo for either one to be permitted to severely harm or destroy the other.
KuNzig, Judge, joins in the foregoing dissenting opinion.These sections had been In the copyright law since 1831 and had been twice re-enacted. Act of February 3, 1831, eh. 16, §§ 6 and 7, 4 Stat. 436; Act of July 8, 1870, ch. 230, §§99 and 100, 16 Stat. 214; Act of March 3, 1891, ch. 565, §§ 4964 and 4965, 26 Stat. 1109.
The trial judge observed that It was the Intent of Congress In all the copyright acts to proscribe the unauthorized duplication of copyrighted works. The words used in the various statutes were simply attempts to define the then-current means by which duplication could be effected. I believe this is a fair statement, but it is not necessary to debate the statutory history in light of the changes in the 1909 Act.
For cases involving the copying of segments from a copyrighted catalog by photographic reproduction, see Hedeman Products Corp. v. Tap-Rite Prods. Corp., 228 F. Supp. 630, 633-34 (D.N.J. 1964) ; R. R. Donnelley & Sons Co. v. Haber, 43 F. Supp. 456, 458-59 (E.D.N.Y. .1942).
The fact that Dr. Putnam, the Librarian of Congress at the time of the 1909 Act, interpreted the word “copy” not to include library photoduplication is no indication that the Congress drafted the statute with this intent. The absence of any provision allowing library photoduplication in the statute or the legislative history indicates, as much as anything else, that Congress did not consider it to be exempt from the Act. The many efforts to amend the law to authorize photocopying by libraries provide a strong indication that existing law was not intended to grant this exemption to libraries. See n. 14, trial judge’s opinion.
It has been held that the copying or printing of something which has been lawfully copyrighted is an infringement “without any requirement that there be a sale or that profits be made from sale of the copies.” Chappell & Co., Inc. v. Costa, 45 F. Supp. 554, 556 (S.D.N.Y. 1942). In Wihtol v. Crow, 309 F. 2d 777 (8th Cir. 1962), the First Methodist Church was found to be liable for a choral instructor’s copying of a copyrighted song.
See tie trial Judge’s opinion for quotations from B. Varmer, Pliotoduplieation of Copyrighted Material by Libraries, Study No. 15, Copyright Law Revision, Studies Prepared for the Senate Comm, on the Judiciary, 86th Cong., 2d Sess. 62-63 (1960) ; Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, House Committee Print, 87th Cong., 1st Sess. 25 — 26 (1961). M. Nlmmer, Nimmer on Copyright § 145 at 653-54 (1973 ed.). See also Crossland, The Rise and Fall of Fair Use: The Protection of Literary Materials Against Oopyright Infringement l)y Few and Developing Media, 20 S. Car. L. Rev. 153,154 (1968).
It should be noted that the Fry survey was made when photocopying was not as prominent as It Is today. Even at that time, the Fry Report notes that larger publishers (who were photocopied most heavily) complained about the effects of photocopying. Fry Report at 86-87. Secondly, the Fry Report operates on the dubious assumption that in most cases the photocopy serves as a substitute for loaning the original material and does no more damage than would loaning of the original material.
In addition to the Fry Report, the majority cites a statement by Dan Lacy, Managing Director, American Boole Publisher’s Council, to the effect that photocopying is undertaken in lieu of manual note talcing, typing, or handwriting a copy, and in lieu of a library loan rather than in lieu of buying a copy. We can hardly expect a representative of an organization of book publishers to be an expert on the problems of journal publishers. Library photocopying of books does not pose the same threat to a book publisher as photocopying of journal articles does to its publisher. Rarely are books photocopied completely. At present, there appears to be no competition for the consumer market between libraries and book publishers.
Por example, In 1968, profit from Pharmacological Reviews was $1,154.44 (on sales of about $40,000). The profit was divided, $1,039 to the American Society for Pharmacology and Experimental Therapeutics and $115.44 to plaintiff. In 1909, net income from Gastroenterology was $21,312 (on sales of about $245,000) and $11,532.35 of that amount was offset by losses the previous year, leaving a balance of $9,779.73. The balance was split between plaintiff and the American Gastroenterological Association, plaintiff getting $4,889.86.
Tr. at 73.
Portions of the trial judge’s opinion have been deleted which accounts for the inconsistency in footnote numbering.
E.g., the November 1956 issue of Medicine has 86 pages, four of which carry commercial product advertising. The August 1965 issue of Journal of Immunology has 20G pages, nine of which carry commercial product advertising.
One argument made by defendant to justify the copying of single articles from plaintiff’s journals is that each article is but “part” of a journal issue, which in turn is but “part” of a journal volume; and, accordingly, defendant says, its libraries have not copied an “entire” copyrighted work. Section 3 of 17 U.S.C. fully meets that argument, for it is undisputed that plaintiff could publish and seek copyright registration on each article separately. As stated in H.R. Rep. No. 2222, 60th Cong., 2d Sess. 10 (1909) :
Section 3 [of the Copyright Act] does away with the necessity of taking a copyright on the contributions of different persons included in a single publication * » *.
Congress enacted the first copyright statute in 1790 (Act of May 31, 1790, ch. 15, 1 Stat. 124). Thereafter, the statute was revised from time to time, notably in 1802, 1831, 1870, and 1891. In 1909, the present statute was passed (Act of March 4, 1909, ch. 320, 35 Stat. 1075) and later was codified as 17 U.S.C. (Act of July 30, 1947, 61 Stat. 652).
H.R. Rep. No. 2222, 60th Cong., 2d Sess. 4 (1909) states :
Subsection (a) of section 1 adopts without change the phraseology of section 4952 of the Revised Statutes, and this, with the insertion of the ■word “copy,” practically adopts the phraseology of the first copyright act Congress ever passed — that of 1790. Many amendments of this were suggested, but the committee felt that it was safer to retain without change the old phraseology which has been so often construed by the courts.
H.R. Rep. No. 83, 90th Cong., 1st Sess. (1967), which relates to revision of the copyright laws, notes that these factors are the ones used by the courts. At 29-37, there is a detailed discussion of “fair use” as applicable to photocopying for educational purposes.
There is no agreement, even, among libraries and Government agencies, of what constitutes “fair use” in institutionalized photocopying. The Library of Congress will not photocopy copyrighted materials without permission of the copyright owners. Many other libraries foUow the General Interlibrary Loan Code and engage in “single copy" photocopying. The U.S. Office of Education, through Its Education Resources Information Center (ERIC) makes available current educational and research-related materials. ERIC wiU not copy copyrighted materials without permission of the copyright owner. See Sophar and Heilprin report at 39-46.
In his opening statement at trial, plaintiff’s counsel said (emphasis supplied) :
The case has nothing to do with the stopping of photocopying. The Commissioner knows that an injunction Is not available in this court, nor is plaintiff, in any case, seeking to ourtail this use of its articles.
Similarly, William M. Passano, plaintiff’s Chairman of the Board, stated in a hearing before a Senate committee:
We feel that it is unrealistic and not in the public interest to consider restricting in any way the use of photocopying devices. They serve a useful purpose in the dissemination of knowledge. Since we, as publishers, *133are in that business, we certainly don’t want to see the spread of knowledge curtailed.
To ns the only solution to the problem is a simple system of royalty payments with a minimum of red tape. * * * [Hearings on Copyright Law Revision before the Patents, Trademarks and Copyrights Subcomm. of the Senate Comm, on the Judiciary, 90th Cong., 1st Sess. 976 (1967).]
CCRe potential pernicious effects of modern, institutionalized photocopying: of copyrighted works (particularly journal articles) in the name of “fair use” is discussed at length in the Sophar and Heilprin report. The authors, at 24, characterize wholesale copying by libraries as “a non-violent form of civil disobedience.”
There has been no dearth of activity to revise the 1909 Copyright Act Some of that activity relates to library photocopying problems. See, e.g., Hearings on H.R. 4347 and other bills before Subeomm. No. 3, House Comm, on the Judiciary, S9th Cong., 1st Sess. 448, 459, 1133 (1965) ; S. 597, H.R. 2512, 90th Cong., 1st Sess. (1967) ; S. 543, 91st Cong., 1st Sess. (1969) ; S. Rep. No. 91-1219, 91st Cong., 2d Sess. 5 (1970) ; S. 644, 92d Cong., 1st Sess. (1971). Por a brief history of legislative activity directed toward revision of the 1909 Copyright Act, see Fortnightly Corp., supra at 396 n. 17; UCLA Project at 931-38.
H.R. Eep. No. 941, 84th Cong., 2d Sess. (1956) ; S. Eep. No. 2071, 84th Cong., 2d Sess. (1956) ; H.R. Eep. No. 1023, 89th Cong., 1st Sess. (1965) ; S. Eep. No. 756, 89th Cong., 1st Sess. (1965).
It Ras been suggested that there be established a clearinghouse for access, permissions and payments for photocopying of copyrighted materials. The clearinghouse would relieve institutional copiers of the burdens of royalty distribution and might also be Instrumental in setting up blanket royalty arrangements, thus relieving the institutions from most recordkeeping requirements. See, e.g., the Sophar and Heilprin report at 82. The clearinghouse concept has also been alluded to in a congressional report:
* * * Despite past efforts, reasonable arrangements involving a mutual understanding of what generally constitutes acceptable library practices, and providing worlcaWe clearance and licensing conditions, have not been achieved and are overdue. The committee urges all concerned to resume their efforts to reach an accommodation under which the needs of scholarship and the rights of authors would both be respected. [Emphasis supplied.] [H.R. Rep. No. 83, 90th Cong., 1st Sess. 36 (1967).]
And it is interesting that Sophar and Heilprin found that librarians favored, two to one, the clearinghouse approach to the problem, even though many of those in favor “indicated a desire to settle an increasingly complex matter, rather than an enthusiastic approval of the idea.” Sophar and Heilprin report, at p. v of the Summary.
In 1969, several bills -were introduced in both the Senate and House to establish a National Commission on Libraries and Information Science. Also in 1969, H.R. 8809 was introduced to provide for a “National Science Research Data Processing and Information Retrieval System.” See 1969 Register of Copyrights Annual Rep. 6. Earlier, in 1967, the Senate enacted S. 22-16, 90th Cong., 1st Sess., by which there would be created a commission to study and compile data on the reproduction and use of copyrighted works. The House took no action on the bill.