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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 subtantial Federal assistance in modernizing their editorial and manufacturing procedures," and I don't know what you are referring to trere; I'm just curious as to what that is.
VIr. Low. John, would you care to comment on that?
Mr. JCDONALD. I'll try, but I believe Mr. McKenna knows more alsout 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 lv 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 rovalty or licensing payment, I think, would be excessive.
Mr. Low. I believe Mr. McKenna has some additional examples.
Jr. 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.
Jir. P'ATTISON. 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 subsiriptions.
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?
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.
So, from the period, say, of the late 1960's to now, there has been a definite decline. My own library has had to cut back on subscriptions, and that has nothing to do with the photocopies, it is simply a reality of frozen budgets within universities, and having to examine highly specialized journals; it has nothing to do with photocopying.
Dur photocopying has increased because of our involvement with the regional medical library program. That supplies copies of highly specialized articles to physicians and health professionals in rural areas, some 50 to 150 miles from us, and we supplied over 600 items in just 1 year. There is no way that they could, in their small hospital libraries, have such collections.
But the answer goes back to, there is a correlation between decreasing amounts of money available to education and research, and the decrease in number of subscriptions. We don't find that relates to photocopies.
Mr. DANIELSON. Which of course demonstrates the difficulty of the problem. If you convince the publishers of that, we will have no problem.
Mrs. Adams. We have been trying. Mr. MARKE. You may recall that the Court of Claims actually stated in its opinion that there was inadequate reason to believe that it—the publisher—was being harmed specifically
Mr. Pattison. I'm aware of that holding. The figures that have been developed by Williams & Wilkins are quite extensive, since that time.
Mr. Low. I wanted to say, in regard to saying the publishers felt they would be for the copying if they felt it would increase their publications, I feel that the copying now is not affecting the number of subscriptions, and I think they pretty much realize that too.
I think they are concerned about what may come in the future without putting words in their mouths—but we found that in discussion with them. Here it has been now over 60 years since we have had a copyright law; they see systems increasing, networks being established
Mr. DANIELSON. I would like to urge that we conclude expeditiously, we have four more witnesses. I don't want to cut you off, but could you make your answers as precise as possible?
Mr. PATTISON. I think I understand that problem. I think I can understand, and I am sure you can, too, some of the concerns the publishers may have. If in fact people do decide that there is no protection at all, then all the lawyers in the town can get together, for instance, and subscribe to the legal journals and just send them around. I'm not saying that lawyers could ever agree to that, they can't agree on anything, but that kind of thing could happen. I suppose that is the answer, the prospective problem is worse than the current one.
Mr. Marke. I'm sorry, just in this context, there is also an obligation on the publishers, perhaps, to change their practices, they haven't been changed since Gutenberg. They ought to look into this area and see what they can provide in the way of services, which would increase their profit as well. We want to cooperate with them, we want to give them every opportunity to make a profit.
Mr. PATTISON. That is a very good point.
Mr. DANIELSON. Will someone give me a very concise definition of *page charges", what are they, and who pays them to whom?
Mrs. ADAMs. Authors pay publishers of scientific and technical journals. These charges are based on the length of the article.
Jr. DANIELSON. In other words, if I have written a scintillating article on something I must pay the publisher to have it published.
Mrs. Adams. That's right.
Thank you, ladies and gentlemen for a very informative discussion here. We will move along rather quickly because we have four more witnesses who will, I know, help us solve this simple little problem.
(The prepared statement of Edmon Low is as follows:]
STATEMENT or Epsox Low, REPRESENTING AMERICAN ASSOCIATION OF LAW LI
BRARIES, AMERICAN LIBRARY ASSOCIATION, ASSOCIATION OF RESEARCH LIBRARIES, MEDICAL LIBRARY ASSOCIATION, Music LIBRARY ASSOCIATION, SPECIAL LIBRARIES ASSOCIATION
I am Edmon Low, Director of the Library of New College, Sarasota, Florida. Today I will present the views of the American library community as represented through six major library associations. With me are representatives of each of the six associations, and three attorneys. These individuals are here to answer questions of particular concern to the members of their associations, if Members of the Subcommittee so desire.
I am happy to introduce them to the Subcommittee at this time. The individuals at the witness table are from my right (the Committee's left), American Association of Law Librarians, Julius J. Marke, Chairman of the AALL Copyright Committee; Association of Research Libraries, John P. Me. Dugald, Executive Director. Sitting behind Mr. McDonald is the ARL counsel, Philip B. Brown of the law firm Cox, Langford, and Brown, Washington, D.C.; American Library Association-I am representing ALA as Chairman of its Copy. right Subcommittee, as well as presenting the unified testimony. Sitting behind me is the ALA counsel, William D. North of Kirkland and Ellis law firm in Chicago; Medical Library Association-Mrs. Joan Titley Adams, Chairman of the MLA Copyright Committee; Music Library Association, Mrs. Susan Sommer, a member of the Association's Board of Directors and Chairman of its Copyright Subcommittee; Special Libraries Association-Dr. Frank E. McKenna, Executive Director. Sitting behind Dr. McKenna is James A. Sharaf, Counsel of the Harvard University Library.
We are here today to talk about library copying and the provisions of the copyright revision bill (H.R. 2223). Because our time for presentation of testimons is very limited, I shall be presenting so far as I am able in the time allotted the concerns of all these various groups. However, each of these organizations will also be filing a statement of its own setting forth in greater detail its individual concerns about provisions of the bill, and all of these representatives will assist me in answering particular questions you may have concerning our tes. timony and the issues raised. Although our testimony today is limited to library photocopying which is the subject of this hearing, there are other provisions of the bill wbich concern us and about which we may be making further statements as other bearings are scheduled.
I would like first to point out that, although this copyright revision bill has been under consideration for ten years, the library photocopying issue is still an Important unresolved subject. In brief, the question which Congress must decide is wbether libraries will be permitted-at no additional expense to continue to serve the public by the long-standing practice of providing single copies of copyrighted material for a user's research or study. It is an issue with direct and widespread impact on the general public. It involves both the right of access to library materials and the cost of that access.
In the past year there have been two major developments affecting this ques. tion. In the first case ever brought by a publisher, the Williams & Wilkins Company, the courts have upheld the photocopying of single copies of copyrighted medical journal articles as being within the doctrine of fair use and not consti.
tuting infringement of copyright. It is in part because this case consumed seven years and major financial outlay that libraries are concerned about the second major development, which is the introduction last year into the Senate bill, without any hearing, of a new and undefined limitation on the rights of libraries, namely, the concept of "systematic reproduction" of either single or multiple copies of copyrighted material.
Now, when we talk about library copying we are not talking about something for the benefit of libraries or librarians, we are talking about something that is carried on for the benefit of users of libraries who include citizens from all walks of life throughout the country. When we talk about library copying prac. tices, we are talking about the schoolboy in California who may neexi a copy of an article in the Los Angeles Times for a project he is working on in his ninth-grade class; we are talking about a judge in a county court in Middlesex County, Massachusetts, who may find he needs a copy of a law review article which bears directly upon a difficult question of law which has arisen in the course of his work; we are talking about a doctor in downstate Illinois who has a patient with an unusual and rare disease and the only recent material to be found is contained in an obscure journal published in Sweden and available only through the Regional Medical Library System, but which article may aid him in saving his patient's life; we are talking about a Member of this ('ommittee asking the Congressional Reference Service of the Library of Congress for an article dealing with copyright; and we are talking about a musician who is preparing a scholarly article on the music of Mozart and needs to take with him to his study a copy of a portion of a recently edited score of one of Mozart's works with which he is concerned. The list is endless, but I wish to emphasize that we are talking about an issue that very broadly affects the ability of people in this country to make use of their libraries which are the repository and storehouse of man's knowledge.
It should be noted here that copyright is not a constitutional right, such as trial by jury of one's peers. The Constitution simply authorizes Congress to create the right. It is therefore a statutory right-one created by law--and may be changed, enlarged, narrowed, or abolished altogether by the Congress here assembled. It is a law enacted not for the benefit of an individual or a corporation but for the public good and with the purpose, as the Constitution expresses it, “to promote the progress of science and useful arts." Consequently, in reris. ing the copyright law the problem for Congress is to design provisions which both encourage the creation of original works and permit the widest possible access to and dissemination of information to the public; and, where these goals compete, to strike a balance which best serves the fundamental objective of promoting learning, scholarship, and the arts.
It is now generally understood that a single collection of books or other recorded forms of thought as represented by any library can contain only a fraction of the total amount of material in existence. Even the Library of Congress, pos. sibly the largest single collection of materials in the world, does not have many thousands of titles which exist in the United States, to say nothing of those else. where in the world, while on the other hand even a relatively sinall library will often have titles not found anywhere else in the country. The location and cata. loging of these titles, and of articles and journals, and the making of some available readily throngh photocopying or loan---the dissemination of knowledge is indispensable to education and research and often involves the reproduction by photocopying of a portion of a monograph or a journal article protected by coprright.
Library photocopying may be roughly divided into two groups, the first being that done either by a member of a library ktaff or by the user binnself from material in the library for immediate use on the prentises or nearhr; the second. that done by one library for and at the request of another library, often come distance away, for use by one of its patrons there. The first is often designated "in-house" copying. while the second we usually refer to as "interlibrary loan." The first is often necessary if a patron is to compare and study several articles from large bound reference volumes as for instance a student writing a term paper in the library. The second is of vital importance in that the scholar or other user does not have the document in hand and therefore it is his only praes. tical access to what may be highly important material for information or research,
At present I am Director of the NW College Library at Sarasota, Florida. Nei College is a small, but very fine, private college and its problems in this connection are typical of the two thousand small and medium-sized colleges throughout the country. While our library is liberally supported and spends every cent It can afford on periodical subscriptions, we cannot possibly have the large remore of a university like the one at Gainesville or at Tallahassee. Yet our Inculty members, if they maintain a good quality of teaching and do the research which contributes to it, must have access by random photocopying at times to the larger collections in the state and elsewhere.
It is usually not known that the interlibrary loan arrangement often encourages the entering of additional subscriptions by the library rather than reducing the number as is often charged. It is a truism that a librarian would prefer to hure a title at hand rather than to have to borrow even under the most convenient circumstances. ('onsequently, when the time comes around each year to consider the list of perioclical subscriptions, the record of interlibrary loans is poukaa nner anal titles are included from which articles have been requested with some frequency during the year. While the situation varies, in our library the numirer is two; if we have had two or more requests for articles from the same title during the year, we enter a subscription. This not only indicates how the procedure can help the periodical publishers, but also indicates that if only one article or none was copied from a title during a year, the journal could not have bil damuged materially in the process. It is not only the small schools which won'suffer if such photocopying were eliminated, however, the scholars at Wisconsin or Michigan would also be severely put to it to continue their research in the same way, and it is these scholars who account for the major writing for the scholarly journals. The journals themselves, therefore, have a stake in seeing this procecinre continued in a reasonable way.
'ourts have long recognized that some reproduction of portions of a copyrighted kork for purposes of criticism, teaching, scholarship or research is desirable and this judicial concept, known as "fair use," is incorporated in section 107 of the revision bill. Libraries have operated all these years under this principle, but it does lack the assurance of freedom of liability from harassing kuits which the librarian needs in his work. This fair use concept is necessarily expressed in general language in the bill, so a librarian will not be able to be sure, until a court decides a particular case, whether his action, undertaken with the best of intentions to aid a patron, is or is not an infringement. This is pointedly illustrated by the recently decided, previously mentioned case of Williams & Wilkins vs. the National Library of Medicine and the National Institutes of Health for photocopying. This suit was instituted in 1968 and only now after years of litigation and expenditures of many thousands of dollars on each side has it been determined that the defendants were 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 demand for Brfurl damages, but also one can be sued for statutory damages up to limit of $300,000 for each imagined infringement. Thus, harassing but unjustifiable suits are really invited by this bill.
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, in behalf of the public good, is not subject to possible suit. This assurance has now been largely provided in parts of section 108 (a) through (f), for which we are very appreciative. However, we are greatly concerned with the addition of subsections 10k (gi(1) and (2), and (h), which take back the very rights set forth in 108 (a) through (f). These are provisions which came into the bill in the Senate after bearings were concluded in 1973, without the opportunity for discussion by library representatives with Senator McClellan's Subcommittee. Today's hearings are the first opportunity we have had 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
perinlized libraries in business, industry, and commerce. This is discussed in the individual statement of the Special Libraries Association.
Sabsection (3) (1) gives us concern because often there is no basis for a library employee to judge whether a request for a copy represents "isolated and unrelated reproduction" as specified in sec. 108(g) (1). For example, if a college instructor in a graduate seminar in Englislı were to recommend to his students,
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