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 against the citizens the libraries serve. Let me give you an illustration from my home state of Oklahoma which I know well. 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 two original libraries subscribed to 20 periodicals between them. The seven libraries now subscribe to over 300. The combined annual book budget of the two original libraries was under $2500. 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 multi-county library is now found in every State in the Union, and over the two decades the Library 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 (S. Rept. 93-983) in the portion discussing systematic reproduction by saying, "The photocopying needs of such operations as multi-county 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 do much mischief indeed.

It was also pointed out to our publisher friends that many systems are not organized for the purpose of copying materials of any kind. For example, one of the large "systems" is SOLINET, an acronym for Southeastern Library Network. This is a group of about 100 libraries in the Southeastern States devoted solely to providing centralized cataloging and catalog card preparation and distribution to member libraries. Other systems have the purpose of encouraging the building of better library collections and the bringing to the area more journals, sets and bibliographies not now represented in the areas. To say that a library merely because it happens to belong to such a "system" is prohibited from photocopying where if it did not belong, it would be permitted to do so, seems to us farfetched indeed.

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.

It seems to us that libraries ought to be encouraged to collect and preserve all of the forms in which knowledge is published and distributed, and that it should be possible for users of libraries to have access for their study and scholarship to all of these forms, not just some of them. If a student of the cinema asks a library to make a copy for him of a few selected frames of some famous motion picture which is being studied, so that he may consider at his leisure a certain key point which is made in an article he is reading, we think the library ought to be able to do that.

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.

In reporting S. 1361 last July, the Senate Judiciary Committee recommended that "representatives of authors, book, and periodical publishers and other owners of coprighted material meet with the library community to formulate photocopying guidelines to assist library patrons and employees." And concerning Library photocopying practices not authorized by the reported bill, the Committee recommended "that workable clearance and licensing procedures be developed.” In response to this request by the Senate Judiciary Committee, representatives

of the different views on this subject were convened in November 1974 by invitation of the Register of Coyprights and the Chairman of the National Commission on Libraries and Information Science. The resulting "Conference on Resolution of Copyright Issues" established a smaller working group to carry out preliminary discussions. The working group and several subcommittees have since met on frequent occasions to consider and prepare papers on a variety of technical and procedural matters.

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. It must be emphasized, however, 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.

The publishers will probably tell you that they, too, are for photocopying but they want money for it without any outlay or trouble on their part. I should like to point out some reasons why 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 per 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 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 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 an historical journal, but the journal did not pay him anything for the article.

In light of these contributions which the libraries and the public already make to the publication of these works, it seems 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 is also 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 above, we urge that sections 108(g) (1) and (2) and (h) be deleted from the bill. This would also be in accord with the Williams & Wilkins 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 copyrighted 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.

[The following prepared statements and correspondence were received for the record:]

STATEMENT OF JOHN P. McDONALD, EXECUTIVE DIRECTOR, ASSOCIATION OF RESEARCH LIBRARIES

The Association of Research Libraries, an organization of the principal university and research libraries in the country, believes that the copyright revision bill ultimately approved by the Courts, Civil Liberties and the Administration of Justice Subcommittee must include provisions which will ensure that the customary, long-established library service of providing a single photocopy of a single article or excerpt from a copyrighted periodical or book for a patron's private use may be continued without incurring liability for copyright royalties. The bill adopted by the Senate last year, and reintroduced in the 94th Congress as H.R. 2223, gives explicit recognition to and protection for library photocopying. However, that bill also incorporates provisions in Section 108(g) which encumber and confuse the expressly recognized right to an extent that would severely hamper libraries' service to the public and exclude practices which are presently lawful. It is imperative that the bill be amended to restore to libraries and the public the rights which they presently enjoy to make limited photocopies of copyrighted works. Section 108(g) (2) should be removed from the bill because: 1. It restricts practices which are reasonable, customary and lawful under the decision in the Williams & Wilkins case. 2. Copyright owners (e.g., publishers) have advanced no evidence showing that such practices in any way injure their economic interests, much less evidence that it is in the public interest to forbid them. 3. The cost of the libraries and ultimately the public of prohibiting or imposing a royalty requirement upon such practices will be extremely high. 4. The primary purpose of the authors of the sorts of articles most frequently copied is to disseminate the results of their research, not to earn royalties.

At issue is the making, whether at the request of a patron or at the request of another library, of single copies of copyrighted matter for the private use of a scholar or other reader. Such copies may be of articles from law reviews, medical journals or scientific or technical periodicals, or they may be passages from other published works. They are made in response to individual requests for single copies, although more than one individual may request a copy of a particular part of a work in a library's collection. In providing this service, a library may make a copy from a work located on its premises, or in the case of a work not in its own collection, it may request the copy from another library, just as it might obtain the original work itself on an inter-library loan for a patron who wished to borrow it. The right to make a single copy for personal use is important to a wide variety of scholars and other library users, from the high school student who wants a copy of an article in a issue of a magazine for a debate or science project to the physician requiring the material for research work or patient care. In the overwhelming number of cases it is the only way in which a researcher can obtain a copy of an article from a issue of a periodical for reference.

Both libraries and the public have traditionally considered the making of such copies to be a natural and necessary part of libraries' services to their users. It is simply one way in which published material is made accessible. Such coples have been made by photographic and other reprographic techniques since before the enactment of the 1909 Copyright Act. No court has ever held that these traditional practices result in liability under the copyright law, and in the test case brought by publishers, Williams & Wilkins v. United States, the U.S. Court of Claims held that the libraries' practices were a fair use of the published materials. That holding was recently affirmed by the United States Supreme Court.

It is vital that the copyright revision bill recognize the right of libraries to make single photocopies of works for the private use of patrons without incurring liability under the copyright law. Although Williams & Wilkins is authority that traditional library photocopying is within the doctrine of "fair use", express statutory treatment is necessary to remove the threat of suit against libraries arising from varying judicial interpretations of what is or is not "fair use". Failure to include such provisions would abandon this area of major public interest to judicial "legislation", and could lead to further costly litigation.

Section 108 of H.R. 2223 extends the necessary recognition, but limitations written into its provisions, principally in Subsection 108(g)—and particularly clause (2) of that subsection-seriously erode the rights which it intends to recognize. Clause (g) (2) excludes from the library photocopying permitted under Section 108 any instance of "systematic reproduction and distribution". Because this restriction was written into the bill by the Senate Patents, Trademarks 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 bak 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 subser ption 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 L.brary of Congress-where would I get it?

Mr. MARKE. Well, on occasion some libraries might have accumelated some extra copies in what is called the "dup. list," and librarians very carefully go through these dup. lists-duplicate lists-to se 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 Fe 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. McDoxan. 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 rested the temptation to say that the decision was "upheld" because the Supreme Court avoided using that word itself.

Me PATTISON, The thing that I see here, this whole dispute, is not so different from that, for instance, with the CATV dispute. Everyboiy scenis 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 wis 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 probably be arrived at somewhere along the line, or we won't get a b. passed at all.

Iust 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 But it, where it says, "Some journal publishers have received substantial Federal assistance in modernizing their editorial and manufa turing procedures," and I don't know what you are referring to tre. I'm just curious as to what that is,

M:. Low. John, would you care to comment on that!

Mr. M. DONALD, I'll try, but I believe Mr. McKenna knows more aikuit it than I. Many of the scholarly societies, the American Chemical Sety, have had assistance from Federal agencies, such as the Naterial Science Foundation, in one or another of their pursuits. The ratore und extent of these subsidies is not something I am an expert only any means, but there are further subsidies that might be cited. Often the authors who publish in these journals have conducted rearch with Federal support. As Mr. Low's testimony points the publishers are paid page charges to get this information distute through these periodicals. The subscription prices themselves Pave rosen, I believe, in excess of the cost of living. So, it seems that riptions have been bought and paid for quite adequately, ar 1 the notion of some further charge, or surcharge in the form of a rova'ty or licensing payment, I think, would be excessive.

Mr. Low. I believe Mr. McKenna has some additional examples, M: M. KENNA, Mr. Mc Donald mentioned profess.onal societies. I am vvan of sub-adies that have been paid by the National Science Foundato to a commercial publisher to acquire cold typesetting equipment, that he has been able to establish a relatively large printing plant, on tols that his publications were of nat.onal interest, covered tras ations of Soviet periodicals.

Mr PATTI N. I see. The other item that I think will be examined as further is that by other test.mony I know that in the Williams & Wak na case, that firm has developed statistics, demonstrating fo te extent it can be demonstrated, it is obviously so full of other få fors tist it is d:fheult to demonstrate demonstrating a loss of Ref』y{t£y?ass

It at of dispute, whether they lose, or don't lose. But if nfot tie pulushers were convinced that they didn't lose, and if fat they were convinced that they mere used their subser ntions, we would't be hay ng this discusión right now. So, I think that 1o alv 29 a point of dispute and something I would like to hear Parate about,

Mew Arrows May I speak to that, sir !

Ve Portie v Certainly.

M

ADAMS. I am a medical Librarian. We were very neach in ed in this wit. If you notice the rate of increved poment of tet på ops from the early 1960's up to, say, 1969 or 1979, t

te perol, as was mentioned, when tre tap d, cf" sert ter zo ister als bes Ane wyn fable, you will we that there was

14

e in the poutuber of subser ptions that were taken by pats 1. g W.¦¦attis & Wilk 118.