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Copyrights Subcommittee at the last minute (after public hearings had been held) and is only vaguely and confusingly explained in the committee report, it is impossible to determine exactly what it means. Such cursory explanation of the limitation as was offered by publishing interests before this Subcommittee seems to confuse it with “related or concerted” reproduction-which is separately treated by Section 108(g) (1) of the bill--and merely disguises the real import of the restriction. It appears, however, to be potentially applicable whenever a library makes a photocopy of an article or other portion of a published work in the context of a “system". There are, of course, many such systems of libraries, from city or county branch library systems to the university with branch campuses to regional library consortia. When it applies, Section 108(g) (2) would reach the making of a single copy for a single requester, of any part, however small, of a copyrighted work. It is precisely the right to make such copies which Section 108 was intended to confirm.
The Senate Judiciary Committee report states that systematic reproduction or distribution within the intent of Subsection 108(g) (2) occurs "when a library makes copies of such materials available to other libraries or groups of users under formal or informal arrangements whose purpose or effect is to have the reproducing library serve as their source of such material." An example which seems to fit this description would be arrangements under which the Legislative Research Service of the Library of Congress provides copies of materials, such as articles from economic or business periodicals, at the request of Members of Congress. An example listed by the Senate committee's report is the case in which a branch of a library system obtains at a user's request a copy of an article which it does not carry in its own collection. The example most frequently cited by publishers is the regional medical library system, by which local hospital aud medical school libraries have access upon request to seldom-read and highly specialized periodicals carried by regional medical libraries or the National Library of Medicine. Each of these examples involves practices which are traditional and obviously reasonable. Just such photocopying practices of the NLM were at issue in the Williams & Wilkins case and were held to be lawful.
The sole rationale offered for the new restrictions is an assertion that they are necessary in order to prevent present and potential subscribers from relying on library photocopying machines in the place of journal subscriptions. That assertion is simply and clearly not valid. The argument has a certain surface plausibil. ity, but in spite of the many opportunities presented to them, notably in the Williams & Wilkins case and most recently at the hearings before this Subcommittee, publishing interests have never offered any evidence to substantiate their claims of damage or to show that their fears for the future have any basis in fact within the context of the limited library photocopying which would be recognized under subsections (a) through (f) of Section 108. In Williams & Wilkins such an inference of injury mistakenly indulged in by the presiding Commissioner was overruled by the Court of Claims which held instead that this record ... fails to show a significant detriment to plaintiff but does demonstrate injury to medical and scientific research if photocopying of this kind is held unlawful." The publishers' reference to practices by the University Microfilms subsidiary of the Xerox Corporation has no relevance to library photocopying, and the firm's profit-making (and royalty-paying) enterprise geared to the reprinting of multiple copies of articles and entire journal issues would clearly be outside the provisions of Section 108 in the absence of Subsection 108(g).
What evidence is available strongly suggests that traditional library photocopying does not injure publishers, and in many instances may actually increase subscriptions. It is reasonable to suppose that libraries which have frequent requests for particular works will purchase those works, if they are available, to better serve their users and avoid the delay and adininistrative expense necessarily involved in inter-library loan transactions. Results of ARL's examination of one inter-library loan network showed a very low rate of coincidence among requests. Rarely was the same article requested by the libraries. It also revealed that 54 percent of all requests were for foreign periodicals and domestic publications not covered by copyright, and that of the remaining 46 percent, 29 perceut of the requests were for publications more than 5 years old, and only 17 percent of all requests were for materials five years old or less. In view of the facts that the overwhelming volume of photocopying involved neither current publications nor multiple copying of the same publications, it is manifest that the photocopying by the libraries was not taking the place of subscriptions. Indeed, library photocopying services may actually help to increase subscriptions, by providing a kind of advertising for the periodicals in which requesters find articles of value.
While there is no evidence that prohibiting traditional library photocopying, or compelling libraries and ultimately the public-to pay copyright royalties for such photocopying will make any contribution to the promotion of science or the arts, or that there would be any other benefit to the public, it is manifest that the direct and indirect costs of the prohibition will be great. Simply to ascertain that a royalty is payable and to collect, account for and remit the royalty will involve heavy administrative costs. If these accounting charges are passed on to Library patrons, they will magnify the direct cost impact on the public, and discourage use. If the cost is charged to the libraries' periodicals budget, it will mean reduced subscriptions, resulting in a decrease in the periodicals available to library users and loss of subscription income to publishers. Another cost will be increased theft and mutilation of publications; and the more libraries have to spend for repair and replacement of mutilated material, the less they will have to spend on new books and journals. But perhaps the heaviest cost of all will be the intangible cost to scholarship, research and education resulting from the deterrent effect which imposition of a royalty fee will presumably have on students and other researchers whose work is assisted and simplified by ready access to photocopies for reference.
The question which this Subcommittee is called upon to answer may be simply put. Should a library be prohibited from making, at a user's request, a single copy of a journal article or of an excerpt from another published work, or liable for a royalty fee simply because it obtains the copy from, or supplies it to a branch library, a library member of a county or regional library system, or other consortium of libraries? Because it is clear that such customary copying br libraries is responsive to specific, specialized needs of library users provides the public access to materials which would otherwise be unavailable and does Dut in fact serve as a substitute for subscription to the publications concerned, the answer must be that libraries should not be so prohibited or so liable. It is clear that the publishers' insistence on a provision which would limit libraries in this regard has little or nothing to do with concerns over actual or potential subscription losses. For the most part subscriptions have increased, with temporary reductions being due to heavy competition from other publishers or to increases in subscription rates which in recent years have outpaced consumer price indexes. The real reason for the conflict over library photocopying lies in its apparent potential as a lucrative new source of royalty income. Indeed it is the publishers' insistence that the libraries agree to pay royalties on their fair ose copying which has been responsible for the breakdown of the many attempts to bring the parties together to resolve photocopying issues.
The Association of Research Libraries submits that the direct and indirert cost to the public of imposing the restrictions on traditional library photocopy. ing contemplated by Subsection 108 (g) (2) far outweigh any foreseeable benefit. We submit that Subsection (g) (2) is totally inconsistent with the constitne tionally-mandated objective of copyright legislation--to promote the Progress of Science and useful Arts---and should be deleted from H.R. 2223.
STATEMENT OF CLARA STEUERMANN, PRESIDENT, MUSIC LIBRARY AssociATION
On behalf of the Music Library Association, I should like to offer a statement on the proposed bill for the revision of copyright (H.R. 2223) and request that
this statement be included in the record of the hearings held May 14, 1975 by Representative Robert W. Kastenmeier.
The Music Library Association, on behalf of the public which its members serve, wishes to take exception to the exclusion of music from the library copying privileges specified in section 108 of H.R. 2223. We feel that patrons of music libraries should be granted the same rights of access to information as are extended to library users in other fields. We maintain that failure to recognize this equal right of access is discriminatory and contrary to the public interest.
Although music may occupy a special position in the concert hall or on the air, music in the library is not substantially different from any other subject collection in the library. Music is widely studied in schools and universities not only as a performing art but as a humanistic discipline equivalent to English literature or history, and music libraries are constituted to serve these studies.
Most music libraries are located in large universities, liberal arts colleges, conservatories and large public libraries with extensive research collections, Music libraries are the repository for one thousand years of Western culture, the period for which we have notated readable records of our musical heritage. Scholars and students come to music libraries to examine and study these works. Such study is a demanding discipline and serious students need to study, analyze, and compare portions of complex musical scores in the same way that advanced students of medieval history, French, or biology need access to data in their respective fields. Just as the plays of Shakespeare represent more than a vehicle for actors to a specialist in English literature, so the symphonies of Beethoven are of intellectual and aesthetic concern to students and scholars of music.
Perhaps the committee is unaware that the exclusion of music in clause (h) of section 108 would restrict the works of Bach, Beethoven and Mozart as well as those of living composers. Edited versions of music from any century may be registered for Class E (musical composition) copy right. It is, in fact, almost impossible to find a score of any kind published in this century which does not bear a copyright notice, and this notice makes no distinction between editorial and authorship copyright. Thus the exclusion of music works in clause (h) will affect study not only of the music of Bela Bartok who died in 1945 but of works by Wolfgang Amadeus Mozart (d. 1791) and Guillaume de Machant (d. 1377). Such restriction may not be the intent of the legislature, but it will be the effect of the statute as it now stands.
Another characterization of music is the practice of issuing scholarly editions in large multi-volume anthologies and collected works. Such sets are customarily found only in libraries. Many of them have been out of print for years. Because of their value, volumes of such sets are rarely available for circulation. Restric. tion of photocopying from such editions as included in 108 (h) would relegate their contents to library shelves where only those with time and the ability to use the scores in the reading room could benefit from them,
By way of contrast, most music libraries are not concerned with ephemera. For instance, the multitudinous lead sheets and guitar arrangements which constitute the bulk of copyright registrations do not find their way into the regular collection of the Library of Congress, much less into smaller libraries. Economics alone makes it impractical for libraries to house and care for material which does not have some social significance or enduring aesthetic value. Music publishers are apparently most concerned about the protection of current, salable, comparatively simple compositions. Restriction of library copying is not a very practical way to go about this. First, as we have pointed out, such works are not necessarily likely to be found in libraries. Secondly, any musician bound on infringement of such work, a popular song for example, could certainly take a melody and harmony down by ear from a recording or the radio more easily than he could locate a copy in a library.
Even professional performers of serious music do not use library copies to study and perform from. A pianist or a singer would rather have his own score it possible, one he can mark for his personal use and one he can keep forever. Even photocopies do not have the convenience of the publisher's binding which is vital to The life of a well used score. Of course serious performers use libra ries but it is chiefly to enlarge their horizons and understanding that they do so.
In any case we would like to remind the committee that the privileges granted in section 108 only apply to material which cannot be obtained through current trade sources. Presumably publishers will respond to popular demand by supplying materials to fill this need. On the other hand the library is frequently the only source for obscure, the out of print, the archaic work which is not in great demand but access to which is urgently needed by a very few.
Apparently the words "a musical work” were included in the exclusions to section 108 at the instigation of the Music Publishers Association, an organization of comparatively narrow economic interest whose chief function is the management of copyright royalties. We feel that we, not they, represent the public interest. The copying privileges extended in section 108 are not in the personal interest of librarians except insofar as the librarians are concerned for the public whom they serve. Photocopying certainly means more wear and tear on the books, and probably means more work for the librarian. The Music Library Aviation here speaks not for its members' convenience, but on behalf of the students and scholars who use our collections.
The existence of section 108 in H.R. 2223 recognizes the enrichment to our culture which scholarly study and its encouragement through libraries provide. Music is a vital part of our cultural heritage and its study as such is recognized as a legitimate scholarly discipline. There is no valid distinction between the scholarly use of music in a library and the similar use of scholarly materials in other disciplines. The exclusion of music from the privileges granted in section JOS would unfairly cripple musical scholarship, including research on music of the past as well as that of the present. Such an action would discriminate against musical scholars and would be contrary to the best interest of the public who are the ultimate beneficiaries of scholarship in general. Therefore, we respectfully repuest that the house Subcommittee on Patents. Trademarks, and copyrights eliminate the words "a musical work” from section 108 (h) of H.R. 2223.
STATEMENT OF FRANK MCKENNA, EXECUTIVE DIRECTOR, SPECIAL LIBRARIES
ASSOCIATION, MAY 14 1973 Sperial Libraries Association wishes to record its substantial agreement with the provisions of $$ 106, 107 & 108 relating to library photocopying in H.R. 2223 (Revision of the Copyright Law). We wish, however, to make two specific cominents and to urge that two specific changes be made:
(a) To cominent on one item in $ 107. Fair use;
(c) To urge vigorously for changes in two items, in $ 108(0)(1) and (9) (2). Reproduction by libraries and archives.
Our comments are presented in the sequence: 1. Identification of Special Libraries Association and Its Interests. 2. Comments on $ 107. Fair Use. 3. Comments on $108. Reproduction by Libraries and Archives : 3.1 $ 103(a) (1); 3.2 108 (g) (1) & (g) (2); 3.3 $ 108 (h).
1. Identification of Special Libraries Association and Its Interests.--Special Libraries Association, with 9.000 members, is the second largest library. and Information-oriented organization in the United States, and the third largest in the world. It is estimated that there are more than 10.000 special libraries in the U.S. The concept of special libraries-or in better words--the concept of specialized libraries is not well known among the general public or even in some segments of the library community itself. The interests and activities of specialized libraries are described briefly in this document and in the annexed brochure' SLA is an association of individuals and organizations with educational,
1 Anner. Special Library Sketchbook. S.L.A., N.Y. 1972. 45 p.
scientific and technical interests in library and information science and technology-especially as these are applied in the selection, recording, retrieval and effective utilization of man's knowledge for the general welfare and the advance ment of mankind.
Special Libraries Association was organized in 1909 to develop library and information resources for special segments of our communities which were not adequately served by public libraries or by libraries in educational institutions. At first the emphasis was on special subject coverage in each special library as it related to the interests and business of its parent organization, for example: sources of statistical data for both corporations and the agencies of the national government and state governments; business data for banks and investment firms; chemical information for the thien developing chemical industry; engineering information for the emerging complexes of engineering and construction companies, etc.
During the past 66 years—and with particular growing needs for rapid inforina. tion delivery since World War II-specialized libraries and information centers have been established in all segments of our nation's affairs. They exist in for. profit enterprises and not-for-profit organizations, as well as in government agencies. Some are open to public use, and others have restricted access (because of security classified materials) or are part of a for-profit organization (because of proprietary information). During this period of accelerated growth, the original emphasis on special subjects has been replaced more and more by the concept of specialized information services for a specialized clientele. An example of such a specialized information service for a specialized clientele is the Legislative Reference Service of the Library of Congress. Although the Library of Congress (as a whole) is often called a “national library," the entire Library of Congress itself is, perhaps, an outstanding example of a definition of service to a specialized clientele: The Congress of the United States of America.
The specialized clients are normally the employees of the parent organization. The specialized information services are based on the speedy availability of information, both for current projects and for management determination of decisions regarding future efforts of the parent organization. To these ends, the members of SLA include not only librarians, but also persons who are subject specialists--so that they can evaluate and screen out the irrelevant, the redundant and the too often useless portions of the voluminous published literature. The totality of the literature includes not only the publications of commercial publishers of copy. righted books and periodicals, but also the avalanche output of government agencies (often with security handling requirements) plus the parent organization's own internal corporate documents (with the obvious need to protect proprietary or competitive information).
As a parenthetical observation, it should be noted that the pioneering work in machine use for information storage and retrieval (now computerized) took place in specialized libraries and information centers in the 1940's and 1950's. Similarly. the need for miniaturization of the bulk of the literature in microforms occurred through the influence of S.L.A.'s liaison with designers and manufacturers of microreading equipment.
Last, but not least, S.L.A. pioneered the concept of information networks-long before computers and other communication devices had been developed. S.L.A. has facilitated communications among its members through the Association's unique information network of Chapters and Divisions. Initiated more than 60 years ago, the network has been frequently updated in response to the needs of new informational requirements.
S.L.A. is organized in 26 Divisions which represent broad fields of specialization or information-handling techniques. These fields range alphabetically from Advertising, Aerospace, and Biological Sciences through Military Librarians, Museums, and Natural Resources, and on to Transportation, and Urban Affairs.
S.L.A. is also organized in 47 regional Chapters which range geographically from Hawaii across the continental United States (plus two Chapters in Canada) and on to a European Chapter (which encompasses geographically all the nonSocialist countries of Europe).
Special Libraries Association in its own right is a publisher of three periodicals and an average of six books per year. Therefore the Association has its own interests as a publisher to conserve its sales income and royalty income. The Association's publications are needed by special groups, but they are in such areas of specialization that commercial publishers (or even vanity presses) would not touch them because of the small sales potential. Our subscription lists range from 12,000 as a high to 1,000 as a low. Our book sales average about 1,000