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copies for each title with a range from 500 to our top category of “best sellers" at a level of about 3.000 copies sold per title.

2. Comments on $ 107. Fair Use. - The Association is in agreement with the delineation of "fair use" as stated in 107. We feel, however, that it is necessary to comment specifically on one phrase in Item (4):

(4) the effect of the use upon the potential market for or value of the copyrighted work. (Emphasis indicated.] We recognize that there may be some validity in the claims of some publishers of periodicals that they may have some loss of income due to multiple photocopying of a single article from an issue of the periodical that is still available in-print. If the issue is out-of-print (that is, if the publisher has not maintained his stock in-print or in-stock), it is difficult to conceive how a photocopy of out-of-print material can cause any loss of income to the publisher.

Further, the slow delivery by publishers to fulfill an order for a single in-print issue is totally unacceptable to the needs of our specialized users who are responsible for fast management decisions. There is little question that it is an administrative impossibility to secure publisher permissions to permit interlibrary response within any reasonable time. Moreover, the costs and delays in seeking such permissions would be prohibitive.

It is also necessary to note that the preparation of photocopies of periodical articles in libraries can not cause a loss of income to the authors. Authors are rarely paid by publishers of learned or trade periodicals (either as a one-time payment or as royalty payments). Indeed, the opposite direction of payment has become prevalent in recent years: a "page charge" is to be paid by the author or his employer to the publisher. These page charges are usually in the range of $30-$100 per printed page.

3. Comments on g 108. Reproduction by Libraries and Archives.

31 Section 108 (a)(1).--The Association is concerned with a possible interpretation of $ 108(a) (1):

(1) The reproduction or distribution is made without any purpose of direct

or indirect commercial advantage; (Emphasis added.) Clarification of the meaning of the existing language is necessary because a majority of special library operations are conducted for purposes of "indirect eommercial advantage" when the library's parent organization is in the business, industrial, or financial communities thru its products and services. It occurs to us that the existing language of $ 108 (a) (1) may have been intended to prohibit a "commercial advantage” to an authorized or unauthorized reprinter or republisher of copyrighted materials. We feel that our concerns can be alleviated by either of two actions :

(a) by adding to $ 108 (a) (1) a phrase such as

The reproduction or distribution is made without any purpose of direct or indirect commercial advantage to a reprinter or a republisher

(Suggested addition italicized.); or (h) through appropriate commentary in the legislative history of H.R.

2723 without any change in $ 108 (a) (1) as now written. Lorislation to be enacted must not prevent or penalize the preparation of photocopies by any library. S.L.A. is, of course, particularly concerned about the status of specialized libraries-especially those in for-profit organizations. There will be immeasurable damage to the total economy and welfare of the nation if such intent were to be contained in the enacted version of H.R. 2223, or if such interpretation is possible after enactment of the law. The rapid transmission of man's knowledge-either to not-for-profit or to for-profit organizations--must not be impeded by law.

Whether libraries request or produce photocopies, the libraries are acting solely as the agents for the individual and distinct users of libraries who in their totality represent all strata of our American society.

3.2 Sections 108 (9) (1) and 108 (g) (2).-Major concerns are raised hy $ 108(g) which was inserted after Senate hearings on $ 1361 (93rd Congress). We wish to subrnit emphatic comments first on 8 108 (g) (2) and then to return to $ 108(g)(1).

(2) Engages in the systematic reproduction or distribution of single or multiple copies or phonorecords of material described in subsection (d).

[Emphasis added.) The Report accompanying $ 1361 (93rd Congress) indicated that it had not been possible to forinulate specific positive examples of "systematic copying.” It

only negative examples can be developed, can there be any logical basis for the insertion of g 108(g) (2) ?

The Association urges that $ 108(g) (2) be: (a) Deleted entirely, or

(0) That it be amended by adding a concluding clause to read : ... of material described in subsection (d) 80 as to impair the potential market for a copyrighted work." (Suggested addition italicized.)

The Association is concerned that the inclusion of $ 108(g) (2)-as now statein any final Act will seriously impede the spontaneity of research and the research capability of organizations that maintain special libraries and information centers whose purpose is to provide access to learned, technical, or specialized publications.

We are particularly concerned about any future construction that could be placed on allegations of "systematic reproduction or distribution" in $ 108 (g) (2). The single word "systematic" has been shown to have an almost endless number of interpretations during the discussions of the "Conference on the Resolution of Copyright Issues” (Nov 1974-Apr 1975). The Conference was jointly convened by the Register of Copyrights and the chairman of the National Commission on Libraries and Information Science.

It is important to recognize that all libraries act only as agents for their clients who request and receive the photocopies. Inclusion of the word "wystematic" does not seem to comprehend the operations of libraries-or the nature of the requests from clients of libraries. Libraries provide photocopies of current or past publications in response to single, spontaneous requests froin the library's clients. Research workers are often thought to be isolated individuals, but research itself is not an isolated activity. Therefore, spontaneous. Isolated—yet single-requests for photocopies of the same article or segment in a copyrighted publication may be received from more than one requestor-tacl acting independently and spontaneously.

The word "systematic" has also been suggested to mean "within a library system.” Library systems have been in existence for many years; public library systems in cities or in counties or multiple special libraries within a corporation or within a government agency. In more recent years, the concept of broader library systems (regional or statewide) has grown. Such systeus have many other meaningful functions other than the preparation of photocopies so as to achieve economies in library functions (for example, shared cataloging, the acquisition of foreign publications or of rare and unusual materials, and the improved access of all citizens to informational materials of all kinds). Al. though publisher representatives have made claims that the number of subscribers has been diminished because of the existence of library systems, no evidence has been presented that any loss of subscription income has occurred. The above comments regarding $ 108(g) (2) are also applicable to $108 (g) (1):

(1) is aware or has substantial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies .. whether made on one occasion or orer a period of time, and (tchether intended for aggregate use by one or more individuals or for separate usc by

the individual members of a group; ...) [Emphasis added.) If a number of single, isolated, spontaneous requests are received over a period of time (italic emphasis above), a library cannot become aware of such a series of events without instituting an extensive and costly system of records of past transactions.

In the case of multiple copy requests (bracketed italic emphasis above), pay. ment of a per page copying fee to the publisher may be thought to provide an equitable solution provided that the costs to libraries for such reporting and payment mechanisms not be disproportionately great in relation to the copying fees to be paid. However, the two possible mechanisms proposed for payment of such copying fees completely negate the concept of "fair use" as stated in $107. The two mechanisms proposed are:

(a) A variable subscription pricing structure with a higher cost to libraries than to individuals. Thus the library would bave paid a fee even if no photo copy is requested.

(0) A transaction fee per page would result in the payment of a fee even for the first photocopy of an item prepared unless the library were to set up a costly record keeping operation of all past photocopy requests.

Discussions in past years bad suggested a range of fees from $0.01 to $0.10 per page. In the immediate past months, publisher representatives at meetings of the Conference (referred to above) have indicated that they wish to receive a higher fee which they will determine individually for each article in each feriodical rather than a per page charge. It must be noted that many photocopy requests are for only one page or a few pages of an article. Thus, this proposal also would be induly costly to libraries and their users.

Should the final result of the proposed legislation be a copying fee payment, the price lerel of the copying fee must be subject to determination by legislative or regulatory action. Otherwise it is conceivable that a publisher might choose to set the level of a copying fee-whether for multiple copies or single copiesat such a high level that access to some areas of published information could be effectively prevented.

3.3 Section 108(h).-The Association feels that there is a real need to distinguish between two formats of “musical works":

(a) Printed musical works, and

(b) Sound reproductions of musical works. To achieve this distinction, we suggest two possible amendments to $108(h):

(1) Delete the words “a musical work” because performances are included in the subsequent phrase, “or other audio-visual work," or

(2) Add a modifying statement so that $ 108(h) will read :

"The rights of reproduction and distribution under this section do not apply to a musical work other than a printed copy ..." [Suggested words are

italicized.) It is important that research workers and students of musicology be allowed "fair use" access to portions of printed music just as $ 108(a) (2) permits "fair nse access to textual materials. In $ 108(h) a clear distinction must be made between performances or sound recordings and music in printed form.

4. Conclusion.--Public libraries have been historically a fundamental development by and for the people of the United States. The initiation and growth of *pecialized libraries represent a unique development in the United States begin. ning with the Library of the Carpenters' Company of Philadelphia before the American Revolution; and also a concept which has spread throughout the world.

Whether the main function of a library is public, school, university or special. ired, all libraries strive to improve and increase ready access by the library's clients to information that will enrich the personal aspirations of the library users, the quality of our communities (whether urban, suburban or rural), and the improvement of the economic standards of all segments of our nation's citizens (minority groups and the disadvantaged as well as the advantaged).

We recognize the importance of the legislative protection of copyright for publishers to prevent improper or unfair diversions from their rightful profits. We also recognize the importance of copyright protection for creative authors to prevent diversions from their rightful earnings.

Apparently, publishers feel that their profit patterns will be improved by receiving photocopying fees. However, the establishment of library photocopring fees will result in the subsidization of the publishing community at the expense of all taxpayers. Public libraries and those in tax-supported schools and universities would have to seek increased public funds annually. Special libraries in business and industry would have to seek increased budget allotments within their curporation. As the expenses of a corporation increase, such expenses can lead onls to increased costs to the ultimate consumers of new products or of improred old products.

We ask that the Subcommittee consider the distinction between the photocopying practices in and by libraries on behalf of library users, which we deem to be proper, and the practices outside of libraries which are improper and which preempt the legitimate property rights of copyright owners.

Special Libraries Association is grateful to the Subcommittee for the opportunity to present our views. The Association will be pleased to submit additional comments if the Subcommittee desires so to assist the Congress in reaching an ultimate and equitable solution to an issue that has values for all citizens,

of the different views on this subject were convened in November 1974 bs latido tion of the Register of Coyprights and the Chairman of the National Cocalicia, on Libraries and Information Science. The resulting Conference on Rezina's Copyright Issues" established a smaller working group to carry out prediary discussions. The working group and several subcommittees have mine the un frequent occasions to consider and prepare papers on a variety of labai did procedural matters.

There are, of course, different views of the significance of the work p*rforord to date by the Conference and its working group. The work has found um te mechanics and the feasibility of possible mechanisms for collecting $* *** for photocopying of copyrighted materials. It must be emphasized, however, landt there has been no agreement as to whether such a payment mechanism is anej's ble to libraries even if it is workable, and also I may say no seeming's work mechanism has yet been advanced in that it still appears it would take desila to collect dimes. There has also been no agreement as to the categories of pub lications to which such a mechanism should be applied and no change in the found tion of libraries that their current photocopying practices are entirely lauíus ad within the fair use holding of the Williams & Wilkins case, and should not it all respect be treated as infringing rights of the copyright proprietor in the proti Las of any new legirlation.

The publishers will probably tell you that they, too, are for photocopying lust they want money for it without any outlay or trouble on their part. I stivuid isht to point out some reasons why licensing and payment of royalties by libraries te the photocopying they do is not justitied. First, many publishers already bave variable pricing for journals; that is, they charge a considerably higher pair for the same journal for a library subscription than for an individual strctibles These prices to libraries often run quite high-subscriptions of $100 to $w pos year are not uncommon; a few run $1,000 or more; and the $70 to $2003 pritis anite commonplace in the scientific field. These bigher subscription prues les libraries presumably are designed in many cases to incinde charges for an...? pated copying. Some journal publishers have received subsiantial federal sasa ance in modernizing their editorial and manufacturing procedures. Other journals and also some of those juxt tuentioned, have already had major contributie al public funds in the nature of per-page chargea, txually in the range of $) to $100 per printed page paid by the author or by a federal grant which is anatu inn his work. The author is usually not paid by the publishes for his work in uritate the article but the library or the institution where the author is lewated cafea mpends a mizable amount for interlibrary loan postage and handling to aid him in preparation of his article which the periodical then receives without art. As as eynmpe, my aa muall library wjunt during this past year over $107) on Hiburary Inan expens for busks to enable a professor to write an artiste for an historical Journal, but the journal did not pay him anything for the arti le.

In dixht of these contributions which the libraries and the public aiready muke to the pullication of these works, it *prin uurtaronable fue durant putolimers to demand still further payment from libraries, and eventualis fle jublie', for the occasional photocopying of indisidual articles for library user 1t **** *** me unreasonable in view of the fact that l»tahing its lefoto 21ation instu available to thine with currunt, ja i tie need put it, librars photnewsboyane fumer te mic purune of the authors of much artiles. But u ben it is my moted that there is no puidence that the libraries' plictes have all'ize] pell him de*** any harm whatsnes er and mav artrally increase their wywriptiones,

in sear that *'h demands are culpriels unjuntiud and the public inte trol Tot;!115ptkut ihosle petq*44] buy Comereu

For the reas we linse advanced alute, we urge that sections 10% 111! 2011 and ini be deleted from the bill him would also be in svord unik lie Withers & Wilkins decors and would prot libraries to 28.11.08 tim justo puttribed Hrars meride of providing a wiliale photos topog of a nilbie arme tip ierpt frontf! Pom*** bu tumedal or immok for a patruun lima Habit will it noring liablitr fastofa right royalties.

It bran a pleasure {uapw-ar ffure you feebayMr (hairman and I 187 For that we arv trud for top sofra ***}a att in any way we run toward a safiofantity pecution of this very dillult but murtant pruskiem.

[The follow.nga prepared statements and correspondence were the aited for the food.]


R: SEARCH LINRABIES T. Asetation of Research Libraries, an organization of the principal uni. ***** *1. march libraries in the country, believes that the copyright resistoe kot talimately aftioned by the Courts, (ivil Liberties and the Administrativa of Justlep mulvmmittee must incude provisions which will elisure that the 15.01 f1.4** bong established library writer of prosiding a single platoonpe of a .marthee or pieerpt fruit a cupyrighted porriolical or book for a jurul 4 people reply mas le controued wit. ut ineurring iabiity for caps r.sht riyallitus, I tre but adotted by the Senate last year, and reintrodured in the Mthan

4. II R *), klyperpleit recognition in and protection for librare poter pret lie#rörr. bill also in orporates provisions in ytin DONIKI was da

af and cufusp the piporrexis Tennized right to an extent that would mven, han.juar tittaries service to the public and excude praer who h are

ir lawful It ja imparate that the hill be amended to puturn to libraries formal te rights which they prenantly enjoy to make limited poten***** Syrahed works bertson 105X112) should be friuosed frous the ball teine It prufrut* firaitbars which are rolmonable, cumomary and lan fut under the

a in the Worms & Wilkins fine for right owners i e. pull-hes) but al. an the evidence about 114 that such practio*** in any way in jure their *** tefte, much less ei luence that it is in the probe interest to fornid t * The At of the libraries and ultimatrly the public of prohibiting or

** A polity ruirement ti much practices will be entre lo'sh. ele primary purpurea of the aut'Brot of the most of ar!icles most frequentis

is to dirtinate the penite of their rearrh, not to earn posalties 11:met Is the making, whether at the rest of a man or at the pret Boff s", po Dour library, of single copies of copyrighted matter for the private use of

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