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thousands of dollars on each side, has it been determined that the defendant was properly obeying the law after all.
Fair use, then, is not really a right to copy any given thing, but only a defense to be invoked if one is sued. This threat of suit, even if one is able to maintain his innocence in court, is very real because suits are costly in proportion to the amount for which one is sued. This revision bill provides not only for a demand for actual damages, but also one can be sued, in extreme cases, for statutory damages up to a limit of $30,000 for each imagined infringement. Thus, harassing but unjustifiable suits are really invited by this provision.
In light of the above we librarians believe that in addition to section 107, delineating fair use, further protection is needed to assure that it is permissible to make a single copy as an aid in teaching and research, including a single copy as part of an interlibrary loan transaction, and that such activity on behalf of the public good is not subject to possible suit.
Now, I want to emphasize here that in 108, the provisions that we want to see maintained are not additions to 107 in the sense of providing further opportunity for copying, but simply a more precise explanation of what, in relation to libraries, "fair use" means. That is, you can be sued, regardless of whether you are guilty or not, under 107. We would like to see the photocopying practices involving single journal articles be permitted without threats of suits.
That assurance is now being largely provided in section 108, (a) through (f), for which we are very appreciative. However, we are greatly concerned with the addition of subsections 108 (g) (1) and (2) which take back the very right set forth in 108 (a) through (f) in the most part. These are provisions which came into the bill in the Senate after hearings were concluded in 1973, without the opportunity for discussions by library representatives with Senator McClellan's committee. Today's hearings are the first opportunity we have to express publicly our very deep concern.
Before discussing subsections (g) and (h), I would like to note there is also a particular problem in the interpretation of section 108 (a) which can affect the specialized libraries in business, industry, and commerce. This is discussed in Mr. McKenna's individual stateinent for the Special Library Association, and he can also answer questions in this regard.
Subsection (g) (1) gives us concern because often there is no basisthis is one that says if an assignment was made and then people came in, you would have to recognize whether it was isolated, or essentially multiple copies. This gives us concern because there is no way for a library employee to judge whether a request for a copy represents an isolated, unrelated reproduction, as specified in 108 (g) (1). For example, if a college instructor in a graduate seminar in English were to recommend to his students, some 10 men and women sitting around a table, that they read an article on Milton's poetry that appeared 10 years ago in publications of the Modern Language Association, and if two of them over the next week were to go to that college's library and look at that article and decide that they wanted to take copies back to their dormitory for further study, we don't see how there is any practical way in which a library can prevent that kind of reproduction of a single copy on separate occasions, and we don't think they should
have to. Also, we do not think that the publication will be damaged in such a process. And yet, the Senate committee in its report on S. 1361 cites such a particular instance.
Section 108(g) (2) says that the rights of reproduction and distribution do not extend to a library which "engages in the systematic reproduction or distribution of single or multiple copies or phonorecords of material described in subsection (d).” The materials referred to in (d) are journal articles or small portions of other copyrighted works.
This gives us a great deal of concern because the question immediately arises as to what constitutes “systematic reproduction.” To the extent that we are able to puzzle it out, it appears to have been aimed at practices of the kind which were upheld as fair use by the Court of Claims in the Williams & Wilkins case. In listening to my publisher and author friends, the preeminent example which they give of systematic reproduction has always been the regional medical library system, with the National Library of Medicine at its apex. Those practices of the National Library of Medicine were, of course, upheld by the Court of Claims in Williams & Wilkins in a decision which was affirmed this year by the U.S. Supreme Court.
Now, the rest of this page goes on describing how the regional medical library system works, and in the interest of time I will omit reading that. But Mrs. Adams works with this all the time and is sure to answer any questions you may have concerning this, and also talks about it in the particular statement she filed.
Going to the top of page 9. Another large and highly important type of system for which this systematic reproduction poses problems is that of the county and multicounty library systems throughout the whole country. These libraries came into being largely through the opportunity provided by the Federal Library Services and Construction Act. This was, and still is, an effort to bring books and other library materials to the millions of people, often in rural areas, who had not heretofore had library services available.
To get counties to join together, vote the necessary taxes, agree on a common governing board, and gain consensus on the sites for a central library and for the smaller satellite libraries in the system is a difficult task. It is often made possible only by the promise to the citizens of much broader areas of information which will be made available to them not only from their small but growing collection in each neighborhood, but also through loans from the central library and through it from larger collections elsewhere. In this, some copying of periodical articles is occasionally involved, but it does not result in fewer subscriptions-in fact, before the founding of many of these libraries, there were no periodical subscriptions at all in the area.
Because interlibrary loan is one of the vital elements in this concept which has been so mutually beneficial to all, it is urged that no restrictions be imposed which would diminish the effectiveness of the program. Such a diminution, if it occurred, would be as much against the interest of the publishers as a gainst the citizens the libraries serve.
I should like to give you an illustration from my home State of Oklahoma, which I know well. I am in Florida now, but Oklahoma is my native State. A few years ago, the Western Plains library system was established consisting of four counties in western Oklahoma. At the time of its organization, there was a single library in each of two counties. The other two had no libraries. Now there are seven libraries in the four counties and two bookmobiles are operating regularly. At the beginning, the 2 original libraries subscribed to 20 periodicals between them. The 7 libraries now subscribe to over 300. The combined annual book budget of the two original libraries was under $2,500; the annual book budget for the seven is now $42,000.
In addition, they have encouraged school libraries to develop collections of periodicals and books and are now promoting with success the creation of home collections of books and periodicals. This tremendous increase in acquisition of materials has obviously benefited the publishers of materials as well as the citizens the libraries serve.
This kind of multicounty library is now found in every State in the l'nion, and over the 2 decades the Libra ry Services and Construction Act has been in existence millions of dollars of Federal money and matching local funds have been expended for this kind of service. The importance of this activity was recognized in the Senate report last summer, accompanying S. 1361, in the portion discussing systematic reproduction by saying, “The photocopying needs of such operations as multicounty regional systems must be met," but no provision was made in the law to specifically provide for these needs. Section 108(g) (2) would prohibit their copying activity, and I believe would do much mischief indeed.
If I may drop to the last paragraph on the page. We are also concerned with section 108(h) which would limit the rights otherwise granted under section 108 by excluding a musical work, pictorial, graphic, and other audiovisual works. These exclusions are illogical. The need of the scholar doing research in music for a copy of a portion of a score is as legitimate and proper as that of the scholar doing any other kind of research. Likewise, the copying of one map from an atlas or a page of diagrams and plans from a technical journal may be just as important as any other kind of material for research. I will skip the next paragraph.
Mrs. Susan Sommer of the Music Library Association is with us today and can provide further information about the problems posed by this section of the bill in relation to music. Dr. Frank McKenna, of the Special Libraries Association, is also here and can discuss the problems in relation to atlas or other graphic materials in books and periodicals.
If I may go to the top of page 12. The paragraphs following what I was reading describe the formation of a study group between the libraries and the publishers to see if there were agreements we could reach in this area of photocopying; and we have had several meetings in this regard.
There are, of course, different views of the significance of the work performed to date by the conference and its working group. The work has focused upon the mechanics and the feasibility of possible mechanisms for collecting payments for photocopying of copyrighted materials. But I should like to emphasize here that there has been no agreement as to whether such a payment mechanism is acceptable to libraries even if it is workable, and also, I may say, no seemingly workable mechanism has yet been advanced in that it still appears it would take dollars to collect dimes. There has also been no agreement as to the categories of publications to which such a mechanism should be applied and no change in the position of libraries that their current photocopying practices are entirely lawful and within the fair use holding of the Williams & Wilkins case, and should not in any respect be treated as infringing rights of the copyright proprietor in the provisions of any new legislation.
I should like to point out some reasons why we think licensing and payment of royalties by libraries for the photocopying they do is not justified. First, many publishers already have variable pricing for journals; that is, they charge a considerably higher price for the same journal for a library subscription than for an individual subscription. These prices to libraries often run quite high, subscriptions of $100 to $300 a year are not uncommon; a few run $1,000 or more; and the $50 to $100 price is quite commonplace in the scientific field. These higher subscription prices to libraries presumably are designed in many cases to include charges for anticipated copying. Some journal publishers have also received substantial Federal assistance in modernizing their editorial and manufacturing procedures. Other journals, and also some of those just mentioned, have already had major contributions of public funds in the nature of per-page charges, usually in the range of $50 to $100 per printed page paid by the author or by a Federal grant which is financing his work.
The author, on the other hand, is usually not paid by the publisher for his work in writing the article, but the library or the institution where the author is located often spends a sizable amount for interlibrary loan postage and handling to aid him in preparation of his article which the periodical then receives without cost. As an example, my own small library spent during this past year over $100 on interlibrary loan expense for books to enable a professor to write an article for a historical journal, but the journal did not pay him anything for the article.
In the light of these contributions which the libraries and the public already make to the publication of these works, it scems to us unreasonable for journal publishers to demand still further payment from libraries, and eventually the public, for the occasional photocopying of individual articles for library users. It seems even more unreasonable in view of the fact that by making the information concerned available to those with current, specific needs for it, library photocopying fosters the basic purpose of the authors of such articles. But when it also is noted that there is no evidence that the libraries' policies have caused publishers any harm whatsoever, and may actually increase their subscriptions, it is clear that such demands are completely unjustified and the public interest requires that they be rejected by Congress.
For the reasons we have advanced, we urge that sections 103(g) (1), and (2), and (h) be deleted from the bill, since these sections are taking away the advantages for the most part granted in 10s (a) through (f). This would also be in accord with the Williams of Wilkins case decision and would permit libraries to continue the long established library service of providing a single photocopy of a single article or excerpt from a convrighted periodical or book for a patron's use without incurring liability for copyright royalties.
It has been a pleasure to appear before you today, Mr. Chairman, and I assure you that we are ready to be of assistance in any way we
can toward a satisfactory resolution of this very difficult but important problem to us.
Mr. KASTEN MEIER. Thank you, Mr. Low, for a very informative statement, a very useful statement.
Off the record.
Mr. KASTENMEIER. Mr. Low, you indicated this morning that you and your colleagues would address the question of photocopying, but that there were a number of other provisions in the bill with which librarians were concerned, and you would hope to testify later on those areas; is that correct?
Jr. Low. Yes.
Mr. KASTENMEIER. Will it be your panel, or will it be a different set of witnesses we might have with respect to other questions?
Mr. Low. I think it would be this panel, but since their judgment may have been in question for selecting me, I can't be sure that I will be speaking again.
Mr. KASTENMEIER. At what point in time did the photocopying that takes place in libraries, really originate, 10 years ago, 15 years ago); can you place that point in time for us?
Mr. Low. The electrostatic photocopying-Xeroxing, as it is often calledl-really came to the fore about 1960, and became widely used in the ensuing years thereafter. However, it has not become a matter of enough concern, apparently I wasn't working with the committee at that time when testimony was taken before your committee in 1965 and 1966, along there, to have been a major problem.
It has come to the fore in recent years, particularly because there has been a considerable amount of photocopying because of the increase in the amount of recorded knowledge, and the impossibility of any library being able to have a major portion of it; and also because of the information of library systems, so-called, many of which were not designed for or concerned with photocopying, but were concerned with promoting better library arrangements in the area of centralized cataloging, and so on.
But the creation of systems seems to have concerned particularly our publisher friends and we would consider the publishers our friends because we have many things in common, much more than our diferences, in spite of those differences that appear before you today. So, we believe that these systems as yet do not pose any threats of damage to the publishers because they were not primarily created for the purpose of promoting photocopying in the sense of trying to get one periodical here, and let it serve for a large group in the surrounding area, and discourage subscriptions by the surrounding libraries.
Vír. KASTENMEIER. I take it the provisions of the bill passed by the Hlouse in 1967, they also would not have been adequate, or at least acceptable, for libraries in terms of photocopying; is that correct?
Mr. Low. Yes. In regard to prior use, you made the statement that you are not attempting to encourage or narrow, but simply put in legal forin, the judicial concept of fair use.
Now, particularly with the suit of Williams & Wilkins--and I don't want to belabor that too much--where they think that some copying is damaging their livelihood, they can bring a suit--that's the weakness of 107 that we have been greatly concerned with since that time. This cannot be controlled if you have a periodical publisher that felt