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Mr. Low. As I indicated, we feel at the present time that no fee should be charged. When we started out in the working group, the first thing we attacked was the systematic copying; that is, what constituted systematic copying. And we were totally unable to reach agreement on that. Some of our publishers insisted that the existence of a union list of serials and State and regional list of periodicals that shows where the periodicals can be located, the existence of these lists constituted a system in itself, and consequently all interlibrary loans became systematic and prohibited.

Others felt that at least the large research libraries which did much copying, simply by the amount of copying they did it must be systematic automatically because of the amount they did.

I tried to point out that often this amount done by the large research libraries was smaller libraries like mine turning to them for copies of articles, and so on, which seemed that it would be acceptable. in a way. So, we were not able to reach any consensus on systematic copying.

The work we have done on the mechanism was simply to see whether there was any mechanism that was feasible, in case it was desirable. We didn't agree that any mechanism that involved royalty payments was desirable at this time. But we have been investigating as to whether or not it was feasible; if not, there wasn't much point in considering further whether it was desirable or not.

We have not yet come up with a feasible mechanism that seems at least to me workable.

Mr. KASTENMEIER. One last question. In terms of the bill before this committee, H.R. 2223, the recommendation that you make in the language on behalf of the library users with respect to photocopying is that sections 108 (g) (1), (2), and subsection (h) be deleted from the bill. This is the only recommendation you would make with reference to 108?

Mr. Low. Yes; well, we have a little concern with 108 (a) (2), which affects the Special Libraries Association in which Mr. McKennaMr. MCKENNA. May I correct that? That is section 108 (a) (1). Mr. Low. Yes.

Mr. MCKENNA. The present language is, "The reproduction or distribution is made without any purpose of direct or indirect commercial advantage."

Now, the question arises, what is the interpretation to be placed on "direct or indirect commercial advantage"? The majority of the specialized libraries exist in business and commerce, and their parent organizations have a direct or indirect commercial interest and commercial advantage, profit, or lower prices, hopefully.

It has occurred to us that the existing language of section 108 (a) (1) may have been intended to prohibit a commercial advantage to an unauthorized reprinter, or republisher, without thinking, or realizing that special libraries existed in American business.

So that in the statement of the Special Libraries Association we have recommended two possible alternatives. One is to add to the existing words so that it will read, "Without any purpose of direct or indirect commercial advantage to a reprinter, or republisher."

The alternate suggestion is that, through appropriate commentary in the legislative history, it indicates that the provision is not intended for special libraries.

Mr. KASTENMEIER. I will now yield to the gentleman from California, Mr. Danielson.

Mr. DANIELSON. Will you tell me, please, what procedures the libraries used for copying prior to the advent of the quick copying machines?

Mr. Low. The photographic method had been used for a long time, dating back even prior to the first Copyright Act. It was a different photographic process, photographing the page instead of Xeroxing. Mr. DANIELSON. You are talking about a large, somewhat cumbersome photostat machine, and it made usually a white copy on black paper.

Mr. Low. That is correct.

Mr. DANIELSON. And that was fairly expensive to operate, was it not?

Mr. Low. Yes; it was.

Mr. DANIELSON. And per page the product was maybe something like 50 cents, something like that?

Mr. Low. Yes. And also, as a result of that and the inconvenience, we shipped much more material, sent the whole volume.

Mr. DANIELSON. Just sent them the book, let them look at it, and send it back.

Mr. Low. That's right.

Mr. DANIELSON. Now, under those circumstances, did you have many complaints I'm going to use the word in the very broad sense-from the publishers of the journals and books?

Mr. Low. Not that I know of. Of course, sending the material was completely legal.

Mr. DANIELSON. I have a very narrow area of inquiry. You did not have complaints at that time.

Mr. Low. No; we did not; I believe that's correct.

Mr. DANIELSON. In other words, it was the advent of the quick copying, and low-cost copying that brought on that problem.

Mr. Low. That's correct.

Mr. DANIELSON. You mentioned in your statement that with some technical journals, at least, there is a different subscription rate for the library than for, I guess you would call it, the individual subscriber. Mr. Low. Yes.

Mr. DANIELSON. Would you give me some examples of that, please? Mr. Low. I have a list of examples, but when I looked in my folder

Mr. DANIELSON. Just a few off the top of your head.

Mr. Low. Well, the American Behavioral Sciences is one, I remember making the list.

Mr. DANIELSON. Sir, I'm not that interested in the title, but do you mean it's $1 for the private citizen, and $100 for the library? Give me some examples of the difference, please.

Mr. Low. Not that spread. I went through my own library, went through the A's, and found about 40 just in the A's alone, and that is a small collection. It is a going practice.

Mr. DANIELSON. Would you give me an example, please?

Mr. Low. Of the price?

Mr. DANIELSON. Yes, please.

Mr. Low. The price will run from $12 for the individual and $30 for the library. It's often double the individual price, to the library; sometimes the spread is much wider than that.

Mr. DANIELSON. Is that a published practice? By that I mean, does it appear within the publication that the subscription for a library is three z dollars, and for the individual one and a half x, maybe. Mr. Low. That is correct.

Mr. DANIELSON. You are confident that is a prevailing practice. I see five heads nodding affirmatively, and one is rather unmoving, here. [Laughter.]

Mr. Low. Yes, that is an established practice.

Mr. DANIELSON. All right, that's good enough.

Last, on these technical journals, what is the practice in the trade. as to this one respect, are they sold by subscription exclusively, or are they sold by subscription and also sold through retail outlets, as we pick up a magazine at a newsstand, for example?

Mr. Low. Most of these are not sold, you do not find them in the newsstand: I believe I'm correct on that.

Mr. DANIELSON. Well, I used the words "retail outlets" to differentiate from newsstand, because I imagine there is some place besides newsstands where you can buy them.

Mr. Low. I don't believe you can buy them-of course you have subscription agents where you can place your subscription, most libraries do in order to get the list all on one bill. But not the retail outlets, in any way, shape, or form.

Mr. DANIELSON. You don't run out and get one like you get last month's copy of—whatever.

Mr. Low. No; you do not.

Mr. DANIELSON. You subscribe for a year, or a period of time.
Mr. Low. Yes.

Mr. DANIELSON. The gentleman on the end has a comment, please. Mr. MARKE. My name is Marke. I think it should be recognized that many of these publications are out of print within a period of 2 months, or 3 months after the issue has been made available to the public. So, it is not even possible to buy it through any source.

Mr. DANIELSON. Well, that's my third question. Once they are out of print, the subscriptions have all been sent out through the mail, suppose you want to pick up a copy of, let us say, May 1970-that's 5 years ago-issue of Journal XYZ, a technical journal, where do you get it?

Mr. MARKE. It's a rare occasion when this is available through the publisher.

Mr. DANIELSON. In other words, you write to the publisher, you inquire of the publisher, does he have a spare copy; is that the way it is done?

Mr. MARKE. Yes.

Mr. DANIELSON. The second gentleman has an answer for us. What is your name, please?

Mr. MCDONALD. McDonald. Mr. Danielson, people subscribe to the periodicals, but they have neither the space nor the money to keep and

bind these periodicals, except the large libraries, such as represented by the Association of Research Libraries, which are the libraries of record. They do assume the responsibility of keeping and binding back files of periodicals.

So, when a request comes to us, it may well come from an individual or library which once subscribed to that periodical, paid the subscription price, but did not choose to keep and bind it.

Mr. DANIELSON. Well, suppose I'm doing some research and I find through the Library of Congress there is an article in a 4- or 5-yearold issue of a technical journal-forget that I have access to the Library of Congress-where would I get it?

Mr. MARKE. Well, on occasion some libraries might have accumulated some extra copies in what is called the "dup. list," and librarians very carefully go through these dup. lists-duplicate lists to see whether any of these issues are available through that list. But otherwise there is no formal structure.

Mr. DANIELSON. I, an individual citizen, how would I find it? I didn't know there was a dup. list, how would I find it?

Mr. MARKE. You couldn't.

Mr. DANIELSON. That's the question.

I have no further questions, I yield to the gentleman from New York, Mr. Pattison.

Mr. PATTISON. Thank you, Mr. Chairman.

I might just as an aside say of the use of the word "Xeroxing," that if the general counsel of Xerox reads that in the testimony, he will lose whatever little hair he has left.

Mr. DANIELSON. That's a real hazard. [Laughter.]

Mr. PATTISON. To you, maybe. [Laughter.]

Mr. PATTISON. I would like to point out a few things. You refer to the Williams & Wilkins case as being "affirmed" by the Supreme Court. In fact, the Supreme Court's was a 4-to-4 decision, I believe. I don't believe it can be said it was "affirmed." I think then it was a 4-to-3 decision in the Circuit Court of Claims. I think that kind of indicates the problem that we will be having, that you have. Yes, sir?

Mr. McDONALD. With all respect, Mr. Pattison, I believe that the language of the decision passed down by the court says, "By reason of a divided court the decision of the lower court is affirmed"; those are the words that the Supreme Court used.

Mr. PATTISON. OK. I was trying to point out that was not one of those decisions where reasonable men would not disagree. [Laughter.] Like yourself, some of my best friends are publishers also. [Laughter.] Mr. McDONALD. We are trying to be very scrupulous about this and resisted the temptation to say that the decision was "upheld" because the Supreme Court avoided using that word itself.

Mr. PATTISON. The thing that I see here, this whole dispute, is not so different from that, for instance, with the CATV dispute. Everybody seems to say, we are helping the other guy more than he has been hurt. The CATV people said the same thing about broadcasting. Broadcasting was delighted to have CATV out there when there was nobody competing with them; it increased their market. Then, all of a sudden when you get the overlapping signals, and duplication, you've got a different thing. That kind of competing interest, I think, is well pointed out in your statement that, indeed, there must be some sort of

a reasonable compromise that will probably be acceptable to no one, but will probably be arrived at somewhere along the line, or we won't get a bill passed at all.

I just have one minor question about your statement on page 12. You referred to something that I'm not familiar with, and I'm just curious about it, where it says, "Some journal publishers have received substantial Federal assistance in modernizing their editorial and manufacturing procedures," and I don't know what you are referring to there: I'm just curious as to what that is.

Mr. Low. John, would you care to comment on that?

Mr. McDONALD. I'll try, but I believe Mr. McKenna knows more about it than I. Many of the scholarly societies, the American Chemical Society, have had assistance from Federal agencies, such as the National Science Foundation, in one or another of their pursuits. The nature and extent of these subsidies is not something I am an expert on by any means, but there are further subsidies that might be cited. Often the authors who publish in these journals have conducted their research with Federal support. As Mr. Low's testimony points out, the publishers are paid page charges to get this information distributed through these periodicals. The subscription prices themselves have risen, I believe, in excess of the cost of living. So, it seems that these subscriptions have been bought and paid for quite adequately, and the notion of some further charge, or surcharge in the form of a royalty or licensing payment, I think, would be excessive.

Mr. Low. I believe Mr. McKenna has some additional examples. Mr. MCKENNA. Mr. McDonald mentioned professional societies. I am aware of subsidies that have been paid by the National Science Foundation to a commercial publisher to acquire cold typesetting equipment, so that he has been able to establish a relatively large printing plant, on the basis that his publications were of national interest, covered translations of Soviet periodicals.

Mr. PATTISON. I see. The other item that I think will be examined by us further is that by other testimony I know that in the Williams & Wilkins case, that firm has developed statistics, demonstratingto the extent it can be demonstrated, it is obviously so full of other factors that it is difficult to demonstrate-demonstrating a loss of subscriptions.

That is a point of dispute, whether they lose, or don't lose. But if in fact the publishers were convinced that they didn't lose, and if in fact they were convinced that they increased their subscriptions, we wouldn't be having this discussion right now. So, I think that probably is a point of dispute and something I would like to hear some more about.

Mrs. ADAMS. May I speak to that, sir?

Mr. PATTISON. Certainly.

Mrs. ADAMS. I am a medical librarian. We were very much involved in this suit. If you notice the rate of increased numbers of subcriptions from the early 1960's up to, say, 1969 or 1970, this is during the period, as was mentioned, when the rapid, efficient reproduction of materials became available, you will see that there was a constant rise in the number of subscriptions that were taken by publishers, including Williams & Wilkins.

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