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Disenssions in past years bad suggested a range of fees from $0.01 to $0 10 per jage In the immediate past months, publisher representatives at meetings of the Conference referred to above) have indicated that they wish to receive algher fee which they will determine individually for each article in each jeromical rather than a per page charge. It must be noted that many photocopy res, „es's are for only one page or a few pages of an article. Thus, this proposal aw, d be ur duly costly to libraries and their users,

Should the final result of the proposed legislation be a copying fee payment, the price level 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 copies -at such a high level that access to some areas of published information could be effectively prevented

↑↑ Rection 198ch).--The Association feels that there is a real need to disfig.sh between two formats of "musical works":

(4) Printed irisical works, and

chi Sound reproductions of musical works,

To achieve fais distinction, we suggest two possible amendments to $108(h): (1) Delete the words "a musical work” because performances are inei „ded in the subsequent phrase, "or other audio-visual work," or

025 Add a modifying statement so that § 108ch) will read:

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

It is important that research workers and students of musicology be allowed Tot qe access to portions of printed music just as † 108(a)(2) permits "fair access to textual materials. In ₫ 10sch) a clear distinction must be made between performances or sound recordings and music in printed form.

↓ Conciusion. Publie libraries have been historically a fundamental develops met by and for the people of the United States. The initiation and growth of spev a red libraries represent a unique development in the United States begin

with the Ibrary of the Carpenters Company of Philadelphia before the Azer, un Revolution; and also a concept which has spread throughout the

Whether the main function of a library is public, school, university or specialteed a latrines strive to in prove and increase ready access by the library's etenta to information that will enrich the personal aspirations of the library

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Mega'ty of our communities (whether urban wabur an or rural), and rosement of the econote statefards of all segmen's of our nation's pa (minority group and the disadvantaged as well as the advantaged), We reg te the Iportance of the legixat ve protection of e tyright for ter to prevent improper or unfair diversions from their rightful profta a no feesgnize the in portance of copyright protection for creative authors to *** 1. veruj ofis from their rightf learnings

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spory pobders feel that their profit pattern, will be improved by rez platom pring fees. However, the establishment of | hirury photoestvirg I result in the nibs dization of the publishing community at the expen«g® overs Par le ratios and those in tax sut tuopted me too's n'd uniI have to wek „reased put lie funds annaly Nenal libraries ess and industry won'd have to seek increased budget allotments with in meration. As the expension of a corporation increase such extensen can vfufrorened costs to the u ‘imate consumers of new prod ets or of in

ak that the Subcommittee conalder the d'efineflin between the photos pra flies in and by litrarien or, bet alf of horary users which we deem and the practices outside of libraries which are faproper and w it the legitimate property rights of copyright owners

u litraries Association is grateful to the phe-mmittee for the opruip. to present out views. Die Association wil be pleased to agh it al ents if the Subcommittee desires so to monist the Congress in reach fan wilmate and equitable solution to an issue that has vaines for ail

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 Commissa on Libraries and Information Science. The resulting "Conference on Resoluta z 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 ad 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 payrartits for photocopying of copyrighted materials. It must be emphasized, however, Lat there has been no agreement as to whether such a payment mechanism is acceptas ble to libraries even if it is workable, and also I may say no seemingly workade mechanism has yet been advanced in that it still appears it would take dolars 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 postion 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 provisious 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 antiopated copying. Some journal publishers have received substantial federal ass.stance in modernizing their editorial and manufacturing procedures. Other jou?imis, 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 any thing 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 unreasonabie 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 niso noted that there is no evidence that the libraries' policies have caused publishers any harm whatsoever and may actually increase their subscriptiotas, 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 10% gidi and (2) and (5) be deleted from the bil. This wou'd 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 artice or excerpt from a copyrighted periodical or book for a patron's use without incurring labelity for copy right rovaitiem.

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 flax very difficult but important problem.

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

STATEMENT OF Jony P. McDowald, 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 bel ultimately approved by the Courts, Civil Liberties and the Administration of Justice Subcommittee must include provisions which will ensure that the evafituary, long established library service of providing a single photocopy of a ⚫ge article or excerpt from a copyrighted periodical or book for a patron's prvite use may be continued without incurring liability for copyright royalties, The ball adopted by the Senate last year, and reintroduced in the 94th Congress as H.R. 12223, gives explicit recognition to and protection for library photoetyng. However, that bill also incorporates provisions in Section 108(g) which her and confuse the expressly recognized right to an extent that would severcy hamper libraries service to the public and exc.ude practices which are presently inwful. It is imperative that the bill be amended to restore to Lbraries. ■ 1 t'æ public the rights which they presently enjoy to make limited photocopies Đếc par 25 fed works. Section 10%eg) (2) should be removed from, ti e ball beeinser 1. It restricts practices which are reasonable, customary and lawful under the dejn in the Williams & Wilkins case. 2. Copyright owners (eg., publishers) kave advanced no evidence showing that such practices in any way injure their tatue Interests, much less evidence that it is in the publje interest to forbid for 3. The cost of the libraries and ultimately the public of prohibiting or 1o tem.ng a royalty requirement upon such practices will be extremely high. 4. The primary purpose of the authors of the sorts of articles most frequently 0 ed as to disse tinate the results of their research, not to earn royalties

At age is the making, whether at the request of a patron or at the request of an cher library, of single copies of copyrighted matter for the private use of Bosch far or other reader Such copies may be of articles from law reviews medikournals or scient fe or technical periodicals, or they may be passages from or pubished works. They are made in response to individ ini requests for um copies, although more than one individual may request a copy of a parerhart of a work in a library's collection. In providing this service, a library tay lovke a copy from a work located on its premises, or in the case of a work krun its own collection it may request the cops from another library, just as

git obfsin the original work itself on an inter library loan for a patron who weted to borrow it The right to make a single copy for personal use is Imjerast to a wide variety of scholars and other library users, from the high art and atrade fit who wan's a copy of an article in a issue of a magszine for a de ate of sesetée project to the physician requiring the material for research work or patient care. In the overwhelt.ing number of enses it is the only way in ha researcher can obtain a copy of an article from a issue of a periodical Le reference

Rith Draries and the publie Lave traditionally considered the making of and copies to be a natural and necessary part of libraries' ser ices to their law it in stmply one way in which punished material is made accessible. Much tir en have been made by fl otographie and other reprographie teel h ́ones since fe? re the enactuent of the 1900 Copyright Act. No court has ever held Pat fuse traditional practices result in liability under the copyright law, and in e text cuse Trought by publishers, Wsiisama d. Wilkina y United staba the Court of Chains held that the libraries" practices were a fair we of t'e aber] Misteriais That holding was recently afried by I'm United States

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It is virai that the copyright revision bil recognize the right of Ibraries to fake alig'e photocopies of works for the private use of patrons without the 19% ty table the copyright law A 2-għ W. - &W Ammo mur my fat traditiora, utrary photowy pring is within the doctrine of fair use' exprE MA Matutory treatient is necessary to remove the threat of suit against 11' rating ༈ :『『་ n vary ng judi val interpretations of what is or is not frame Jem hit via dan wanda and r •! . area of

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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 and 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 plausibility, 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 administrative 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 pub

lications not covered by copyright, and that of the remaining 46 percent, 29 percent 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 by libraries is responsive to specific, specialized needs of library users provides the public access to materials which would otherwise be unavailable and does not 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 use 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 indirect cost to the public of imposing the restrictions on traditional library photocopying contemplated by Subsection 108(g) (2) far outweigh any foreseeable benefit. We submit that Subsection (g) (2) is totally inconsistent with the constitu 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

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