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 decreas ing 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 expeditionsly, 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 pubashers 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 obliga tion 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. PATTIS N. That is a very good point.

Mr. DANIELSON. Will someone give me a very concise definition of " charges", what are they, and who pays them to whom!

Mrs. ADAMS. Authors pay publishers of scientific and technical jourThese charges are based on the length of the article.

Mr. DANIELSON. In other words, if I have written a scintillating are on something I must pay the publisher to have it published. Mrs. ADAMS. That's right.

Mr. DANIELSON. Thank you.

1:ank you, ladies and gentlemen for a very informative discussion les. We will move along rather quickly because we have four more wtes who will, I know, help us solve this simple little problem. Le prepared statement of Edmon Low is as follows:]

STATEMENT OF EDMON Low, Representing. AMERICAN ASSOCIATION OF LAW LIBRARIES AMERICAN Linary AssocIATION, AssocIATION or Research Libraries, MUSICAL FIBRARY ASSOCIATION, MUSIC L.REARY ASSO IATION, SPECIAL LIBRARĜES ASIA. ION

I am Edmon Low, Director of the Labrary of New College, Sarasota, Flor.da. 1 day I will present the views of the American library community as represetatenă (2 h 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, off Metals rx of the Subcommittee no desire.

I am happy to introduce them to the Subcommittee at this time. The in4.1.dais at the witness table are from my right (the Committee's left), Aror, an Association of Law Librarians, Julius J. Marke, Chairman of the AAIT € pynight Committee; Association of Research Libraries, John P. McIs a la vocutive Director, sitting behind Mr. McDonald is the ARL, counsel, 1. B. Brown of the law firm Cox, Langford, and Brown, Washington, DC; Aver, an Ibrary Association-I am representing ALA as Chairman of 17% Copy T · ts,bcommittee, as well as presenting the unified testimony Sitting behird He is the ÂÌÂ counsel, William D. North of Kirkland and Elis law firmă în -g -- Moshi al Library Association Mrs, Joan Titiey Adams Chairman of the M. A Copyright Committee; Music Library Association, Mrs. Basan Soumer, a

ber of the Association's Board of Directors and Chairman of its Copyright **** Puf,Tree, Special Libraries Association Dr. Frank E McKenna, Execttate Director: Kotting behind Dr. McKenna is James A. Sharaf, Counsel of the Hirvard University Library.

We are here today to talk about library copying and the provisions of the meer ght revision bill (HR. 2223), Because our time for presentation of texti kivuis very limited, I shall be presenting so far as I am abie in the tire vil * 4 the esteerus of all these various groups. However, each of these organization, a - a no be fi....tg a statement of its own setting forth in greater detail its in. tila, ex scerns about provisions of the bill, and all of these representatives whil et Le in anumertg partien ar quent,chim you may live concerning our te "y and the issues raised. Although our testimony today is a mited to i hrary tying which is the subject of this hearing, there are other provisions of the hei which concern us and about which we may be making further stateen's as her hearings are scheduled.

Imi ar first to pent out that, alth ngh this copyright revision bill has les under consideration for ten years, the library photocopying isntie la of 21 an It pertant unresolved subject. In brief, the questions which Congress must fa is wetuer libraries will be permitted-at no additional expenses

fo serve the purje by the long standing practice of providing mir gle copies of et fighted material for a user's research or study. It is an issue with direct and ♥ Despread in part on the general pubile. It involves both the right of a 1998 to +'rity materials and the cost of that access.

In the past year there have been two major developments affecting this ones fis in the first case ever brought by a publisher, the Williams & W. K75 € the murta have upheld the photocopying of single oogtew At A

a. je urzal articles as being within the doctrine of fair use and tote

tuting infringement of copyright. It is in part because this case consumed seve years and major financial outlay that libraries are concerned about the secad major development, which is the introduction last year into the Senate bl without any hearing, of a new and undefined limitation on the rights of libraries, namely, the concept of "systematic reproduction" of either single or muiti, e copies of copyrighted material.

Now, when we talk about library copying we are not talking about somet! 12 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 praetices, we are talking about the schoolboy in California who may need a r of an article in the Los Angeles Times for a project he is working on in w ninth-grade class; we are talking about a judge in a county court in M.d Tesex County, Massachusetts, who may find he needs a copy of a law review artice 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 Il'inois 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 availa only through the Regional Medical Library System, but which article may ad him in saving his patient's life; we are talking about a Member of this Colas mittee asking the Congressional Reference Service of the Library of Congress for an article dealing with copyright; and we are talking about a musician w?¢ 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 emphas.re 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 corpor ation 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 revie 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 re corded 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 mary 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 sma 1 library wi! often have titles not found anywhere else in the country. The location and catalog ng of these titles, and of articles and journals, and the making of some avail able readily throngh photocopying or loan the diocombuation of knowledge is indispensable to education and research and often involves the reprodution by photocopying of a portion of a monograph or a journal article protected by cutt

right

Library photocopying may be roughly divided into two groups, the first being that dose either by a member of a librare staff or by the river bimself frea material in the library for in mediate use on the prep her of pearby ; the secrta that done by one library for and at the reenest of ·nother Ibrary, oftentime distance aw ir for use by one of its patrons there. The frd is often desigested se konse" copying while the second we natally refer to as generl brary loan" Te first is often necessary if a patron is to eum? yre and study several artis from large bind reference volumes as for that inde a student writing a term purer in the li rary. The second is of vir-1 haportance in that the scholar of ofer user does not have the document in bend and therefore it is ple only poses tical access to what may be his important material for information or re search.

At present I am Director of the Now College Librare at Sarasota, Florida. New College is a small, beit very fine private collège and us problems in this to D

bection are typical of the two thousand small and medium-sized colleges throughen the country While our library is liberally supported and spends every cent It can afford on periodi al subscriptions, we cannot possibly have the large res sources of a university like the one at Gainesville or at Tallahassee. Yet our facnity members, if they maintain a good quality of teaching and do the research wich contril utes 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 encour ages the entering of additional subscriptions by the library rather than reducing Vet, tmp am is often charged. It is a truism that a librariin would prefer to have a frie at hand rather than to have to borrow even under the most convenent eirengstances. Consequently, when the time comes around each year to ex, fer the list of periodical subscriptions, the record of interlibrary loans is Bathed and titles are included from which articles have been requested with mte frequency during the year. White the situation varies, in our library the hituser is two: if we have had two or more requests for articles from the same the during the year, we enter a subscription. This not only indicate Low the pravdi re can help the periodical publishers, but also indicates that if only one kittle or none was copied from a title during a year, the journal could not have best daringed materially in the process. It is not only the small schools which wind after if sich photocopying were elim nated, however; the wholars at Wisconsin or Michigan would also be severely put to it to entite 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 Dand weyniri confitned 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 desiralue and this judicial concept, known as "fair use." is incorporated in see1 n 107 of the revision bill Ibraries have operated all these years un ler this pipe, but it does lack the assurance of freed om of liability from harassing su ra which the librarian needs in his work. This fair use concept is necessarily extressed in general language in the bill, so a librarian will not be able to be sure, vet, a court decides a particular case, whether his action, undertaken with the feat of intentions to aid a patron, is or is not an infringement. This is pointediy i'netrated by the recently decided previously mentioned case of Wilatus & W in vs the National Library of Medicine and the National Institutes of Hey 191⁄2 for photocopying. This writ was instituted in 1968 ad only now afte years Để Litigation and expenditures of many thou-ands of dolars on each side has It been detery ined that the defendur ta were properly obeying the low after all. Furn then is not really a right to copy any given thing feat only a defetose to be invoked if one is sued. This threat of suit, even if one is able to ma niain bra in nook now in court is very real because suits are costly in proportion to the are and for which one is sued. This res sion but provides not only for dead at 1 for v, demages, but a so one can be sued for statutory damages up to list of Bean for each in agired infringement. Thus, harassing but ungus afable saitw ཞིགས Pམས* y &ivi"«f ov *b.{w bt't

lght of the above we 1brarians believe that in add ti n to Section 107 big fair use, further protection is needed to assure that it is permissal le boryske a sftigle eut y as an vid in tɛaching and research, including a single copy no part of an Interlibrary loan transaction and that much activity it, but af.." an god is n t wil est to poss!' le mult. This assurance 1. s now been large a provided in parts of section 10% cầy through of), for which, we are very Kore alive. However, we are greatly concerned with the ad ' ton of stil sơn Tâorus ༅།་a༅-『་༄༄་།*r}fsu whittle ?. A the very r„ht = mo* f #th in 10%

*riu『,"『tare as ieuy nt' ས་W- e"mtzgo friy°c! að dagarna were not boded in 15%, 3 with at the opportu↑

པ། མ་སྣ་ ་ སྔོ་སྟངས་ ཚད། དན་བུ* ?།དྭgs སྙན!i &fia M Ci ”a, 6 ས མི

tur in a graduate actullar in Fag ...' were to root.1.

"

t

some ten men and women sitting around a table, that they read an art. leve Milton's poetry that appeared ten years ago in Publications of the MGTH 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 alt practical way in which a library can prevent that kind of reproduction of as copy on separate occasions, and we don't think they should have to. And yet Senate Committee report on S. 1361 (S. Rept. 93-983) cites such an insti“ Section 108(g) (2) says that the rights of reproduction and distribuzon a vá extend to a library which “engages in the systematic reproduction or distribal a of single or multiple copies or phonorecords of material described in sulsen“, & (d)." The materials referred to in (d) are journal articles or small portets k other copyrighted works,

The question immediately arises as to what constitutes systematic reprodas tion. To the extent that we are able to puzzle it out, it appears to Live wed 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 bas always been the Regional Medical Library System, with the National Labrary sď 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 decisi 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 parto,i 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 r.ay not have this, particularly if it is older material. The request would then gi to one of the eleven Regional Medical Libraries over the country which are ste ported by Congress, and from there as a last resort to the top of the pyrom. 4 which is the National Library of Medicine and which now has over 25.000 differ ent journals, the biggest medical colection in the world. It is obviously not pos sible for the smaller hospital library, or sometimes even the Regional Med. "al Ibrary, to have a sizable portion of this vast amount of material, so some kitidsf Lects, 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 orga nization 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 Medi eal Libraries are not only striving to augment their collections as rapely as possible but likewise are urging the smaller hospital libraries to upgrade theirs. thus providing all along the line an ever-increasing number of sul seriptans with accompanying increased financial gain for the publishers, Mrs, Joan Tuley Adams, of the Medical Library Association, who is with us here today, can pro vide for any of the Committee members who are interested further details about this highly significant work in the medical and health neids.

Another large and highly important type of system for which this systematic reproduction poses problens is that of the county and multi-county library *** tems throughout the whole country. These libraries came into being largely tl rough the opportunity provided by the federal Library Services and Construetion Act This was and still is an effort to bring books and other library materials to the ma'lions of people, often in rural areas, who had not heretofore had library service available. To get counties to join together, vote the nees ssary taxes, gree on a common governing board, ard g..in consensus on the sites for a central li brary 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 tuis, some copying of periodical articles is devaspitia by involved, but it does not result in fewer side in fict before the foun lng of many of these libraries there were 5) period, al subas rijti ts at al, in the area.

Because inferibrary lean is one of the vital elements in this concept whịch has been so mituany beneficial to all, it is urgent that no restrictions be išijemed