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. Our 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 futurewithout 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 pro tection 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.

Mr. 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.

Mr. DANIELSON. Thank you.

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 OF EDMON LOW, REPRESENTING AMERICAN ASSOCIATION OF Law LiBRARIES, 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. MeDonald, 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 Copyright 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 testimony 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 which concern us and about which we may be making further statements as other hearings 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 whether 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 question. 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 need 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 Committee 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 revising 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, possibly 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 elsewhere in the world, while on the other hand even a relatively small library will often have titles not found anywhere else in the country. The location and cataloging of these titles, and of articles and journals, and the making of some available readily through 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 copyright.

Library photocopying may be roughly divided into two groups, the first being that done either by a member of a library staff or by the user himself from material in the library for immediate use on the premises or nearby; the second, that done by one library for and at the request of another library, often some 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 praetical access to what may be highly important material for information or research.

At present I am Director of the Now College Library at Sarasota, Florida. New College is a small, but very fine, private college and its problems in this con

nection 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 resources of a university like the one at Gainesville or at Tallahassee. Yet our faculty 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 have a title at hand rather than to have to borrow even under the most convenient circumstances. Consequently, when the time comes around each year to consider the list of periodical subscriptions, the record of interlibrary loans is scanned and titles are included from which articles have been requested with some frequency during the year. While the situation varies, in our library the number 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 been damaged materially in the process. It is not only the small schools which won'd 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 procedure continued in a reasonable way.

Courts have long recognized that some reproduction of portions of a copyrighted work 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 suits 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 actual damages, but also one can be sued for statutory damages up to limit of $50,000 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 10% (g) (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 hearings 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 specialized libraries in business, industry, and commerce. This is discussed in the individual statement of the Special Libraries Association.

Subsection (g) (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 English were to recommend to his students,

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some ten men and women sitting around a table, that they read an article on Milton's poetry that appeared ten 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. And yet, the Senate Committee report on S. 1361 (S. Rept. 93-983) cites such an 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.

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 United States Supreme Court.

Now, how does the Regional Medical Library system really work? Well, it starts off with the user, who discovers that he needs access to some particular information, often found in an article in a professional journal in the biomedical field. He usually starts off by going to the library in the hospital with which his practice is affiliated, and may find it there. If it is one of the most important journals, the hospital may well have it. But, since there are thousands of journals in the medical and health sciences field, the chances are that the hospital library may not have this, particularly if it is older material. The request would then go to one of the eleven Regional Medical Libraries over the country which are supported by Congress, and from there as a last resort to the top of the pyramid which is the National Library of Medicine and which now has over 25,000 different journals, the biggest medical collection in the world. It is obviously not pos sible for the smaller hospital library, or sometimes even the Regional Medical Library, to have a sizable portion of this vast amount of material, so some kind of access, such as photocopying, must be relied upon to get the information to the doctor or the other health professional when urgently needed. This kind of organization of access to scientific and technical knowledge seems to us to be the intelligent way of doing things. It should be noted also that the Regional Medical Libraries are not only striving to augment their collections as rapidly as possible but likewise are urging the smaller hospital libraries to upgrade theirs, thus providing all along the line an ever-increasing number of subscriptions with accompanying increased financial gain for the publishers. Mrs. Joan Titley Adams, of the Medical Library Association, who is with us here today, can provide for any of the Committee members who are interested further details about this highly significant work in the medical and health fields.

Another large and highly important type of system for which this systematic reproduction poses problems is that of the county and multi-county 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 service 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 urgent that no restrictions be imposed