ACRL News Issue (B) of College & Research Libraries


June 1990 / 523

Washington Hotline

Carol C. Henderson (202) 547-4440; (ALA0025)
Deputy Director, ALA Washington Office

Copyright, unpublished works. Bills to clarify that the fair use doctrine incorporated in 
section 107 of the copyright law applies to unpublished as well as published copyrighted works 
were introduced in March by Rep. Robert Kastenmeier (D-WI), Chairman of the Judiciary 
Subcommittee on Courts, Intellectual Property, and the Administration of Justice, and by Sen. 
Paul Simon (D-IL) and Sen. Patrick Leahy (D-VT), both members of the Senate Judiciary 
Committee.

The bills, HR 4263 and S. 2370, are a response to federal court rulings which have the 
effect of severely restricting authors and scholars from quoting excerpts from unpublished 
primary sources, or requiring permission for all such use. The quoting of reasonable excerpts had 
long been considered fair use. Most recently, the Supreme Court in February declined to review 
a 1987 Second Circuit Court of Appeals decision in New Era Publications v. Henry Holt, which 
found that an author’s copyright in unpublished works is infringed by the subsequent quoting of 
excerpts in works such as biographies.

Copyright, software. On May 1, the Senate passed S. 198, a bill to prohibit the 
commercial rental, lease, or lending of computer software. S. 198 would exempt nonprofit 
libraries and nonprofit educational institutions from its provisions. Nonprofit libraries lending 
software must affix to each software package the following notice:

“Warning: This computer program is protected under the copyright law. Making a copy of 
this program without permission of the copyright owner is prohibited. Anyone copying this 
program without permission o f the copyright owner may be subject to payment o f up to $100,000 
damages and, in some cases, imprisonment for up to one year.”

The Register of Copyrights is to review the library exemption in three years, and after 
consulting with copyright owners and librarians, report to Congress. In other provisions, transfer 
of possession of a lawfully made copy of computer software by a nonprofit educational 
institution among faculty, staff, students, or to another school is not prohibited. The bill does not 
apply to computer programs embodied in computer game cartridges.

The Senate Judiciary Committee’s April 19 report (S. Rept. 101-265) on S. 198 includes a 
section on “Lending by Libraries and Educational Institutions,” from which the following is 
excerpted: “...many educational institutions legally acquire copies of computer programs for use 
by multiple users. Examples of this include the lending by instructors to students of programs to 
be used by the student in completing a class assignment. This practice or other practices 
involving the transfer of possession of an authorized copy of a computer program owned by an 
educational institution among faculty, students, and staff for individual use, or to another 
nonprofit educational institution, which does not involve the making of unauthorized copies, 
does not constitute rental, lease or lending for direct or indirect commercial purposes under this 
act.”