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only negative examples can be developed, can there be any logical basis for the insertion of 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 (0) 80 as to impair the potential mc irl for a copyrighted work." (Suggested addition italicized.)

The Association is concerned that the inclusion of 105(g)(2)-as now sta! in any final Act will seriously impede tbe spontaneity of research and the main capability of organizations that maintain special libraries and informatii (90 ters whose purpose is to provide access to learned, technical, or spendisse publications,

We are particularly concerned about any future construction that could have placed on allegations of systematic reproduction or distribution" in logi The single word "systematic" has been shown to have an almost endless faut. * of interpretations during the discussions of the "Conference on the Resultant in Copsricht in ues" (Nov 1974-Apr 1973). The ('onference was jointly pinisia or the Register of Copyrights and the chairman of the National Comune Libraries and Information Science.

It is important to recognize that all libraries act only as agents for the 18 clients who request and receive the photixopies. Inclusion of the word **** tematic" does not seen to (omprehend the o rations of librarie--48 tielle ture of the requests from clients of libraries. Libraries provide photos current or past publications in response to single, spontaneu requests from the library's clients. Research workers are often thought to be isolated frd! uals, but research itself is not an isolated activity. Therefore, spuottaneous, 10 lated yet single-requests for photocopies of tbe same article or serment 15 a copyrighted publication may be received from more than one requiaracting independently and spontaneously.

The word "stematic" has also been suggested to mean "within a long gretem." Library systems have been in pristnip for many years: polilie lubran

ystems in cities or in counties or multiple cial libraries within a Cuport, or within a government agency. In more rerut Jears, the concept of bowder library systems (regional or statewide) has grown. Such ersteus hase teavy other meaningful functions other than the preparation of photo pies so as to achiere economies in library functious (for Prample, shared talaging te acquisition of foreign publications or of rare und unusual materials, #1. the introved acres of all citizens to informational materials of all kinds). Il though publisher riprentatives have made claims that the top of slime scribers has been dimin-bed h1 UNA of the printed of library seemn, Du erideore has been pretted that any loss of subscription income has currel The abore comments Mrkarding & 10WIN1I2) are also applicable to lingili

() is aware or has substantial reason to lieve that it wenzanne in die related or mincerted reproduction or distribution of multiple cripik arhether made on the extra ****or oirt a period of time, and what intended for aggregate txe by one or more individuals or for separate sul

the indiridual me mire of a group; ...} [Emphasis added.) In number of sitkle, imated. Njxshtanes requems are repired over a riit of time (italie einplasin almie), a literary cannot bere aware of the # wrie of events without instituting an extensive and stly system of rerurus 1 past transactions

In the # of multiple a rena flora« ked Italie emphaefe aborp., tuku ment of a pr page aufilik lep to the publisher may be tbought to pruride a equitable wlotion provided that the cute to bibraries for snel reporting a C ment 111***.Anims not * di premirtantly great in relation to the same to to be paid uteser, the two lile us bañisms from for payment me eh aprint (

r e pletely notate the KPpt of "fair use" as stated in 10, The two meclutats prudar: 10 Aurille rularison orangtriter with

her mit *** librin than to individuals. Thus the library would baie ind a fee on "mentis cofar is requested.

ini Airin action fee ir page would result in the revent of a fer pret the fret phrateaupr of an item prend unless the library were to set up wis rend hepi ratief of all just pluton pyrit

More lone in past year had suggested a range of fees from $0.01 to $0 10 per are in the intrilate past months, publisher representatire at meetings of to ferredi ireferred to be have indicates that they wish to receive .!kar fre which they will determine individually for each article in each ** a rather than a per page chave. It must be noted that many photocopy m, 'are but only one page or a few pages of an article. Thus, this proposal 2.6***", d l w 134, d'ily cuely to libraries and tbeir users.

butid the final result of the promised legislation be a copying fee payment, the

p iiri of the cuping fre must be subject to determination by legislative o Ir.'auty act100. Otherwis IC in conceivable that a publinker might chrone top tror frårt of a copying fre whether for muitiple copies of single copies at sub o bich level that act to w e areas of published information could be

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1 Heren Joh).- The Aviation feels that tbere is a real ped to disish tmern two formats of "musical works':

fai l'rinted 'lical works and

hi Sund reproductions of musical work, Tv adirir tils distinction, we muzeut two musible amendments to $105 (h):

i Telete the wonts "a musical work" because performances are in rol in the suprot phrase, or other andiovisual work," or

Add a tudling statement so that I losih) will rrad: The rigtits of reproduction and distribution under this section do not apply to a most all work other than a printed copy ..." (Suggested words are

1Həfiant that resarch workers and students of musicology be allowed Yupo nyop am to portions of printed m ic just as IOS A )12) pertnits tinir 3 are in tortnal materials, in loihA clear distinction must be made Bern performanors or mun nxording and music in printd forin,

minnon tutte librarins have been historically a fundamental develop ter of hy and for the puple of the lnited Nintes 'I he initiation and growth of **** & fedifraries represent a unique development in the l'nited States begin

'h the library of the ('artmfiter' (#paty of l'hiladelphia before the 437*. *n Revolution; and also a cuerpt which has spread throughout the

Wirbhe rain function of a l'any is pubile, school, unirerally or weal

p e to infurti.all that #111 enrich the permai aspirations of the library

7** ** *** *919 fim , in het!,T Tr i buiran or riral), and ! "#r**nt of the Arts ** )*** a rd of all *1111' (oir na lot, « • P& miharity grow and the d. vadonntagrd av well as the advariage), M. *,te the 11: ante le infurtne

ri, for . , te poprirat in our rnfair plans frut their richeful pure Wa. .te the itiriant prihat protection for erratine au bors to

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of the different views on this subject were convened in November 1974 by listed tion of the Register of Coyprights and the Chairman of the National (oc.cine on Libraries and Information Science. The resulting Conference on Revenge of Copyright Issues" established a smaller working group to carry out pret Lary discussions. The working group and several subcommittees have rida X: frequent occasions to consider and prepare papers on a variety of ler Lalaki sa wed procedural matters.

There are, of course, different views of the significance of the work perford to date by the Conference and its working group. The work has focused up ! mechanics and the feasibility of possible mechanisms for collecting fit :* for photocopying of copyrighted materials. It must be emphasized, however, lanal there has been no agreement as to whether such a payment mechanism is acej.. bie to libraries even if it is workable, and also I may say no stemning's sotha mechanism has yet been adranced in that it still appears it would take dinin 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 formula tion of libraries that their current photocopying practices are entirely law it ald within the fair use holding of the Williams & Wilkins case, and should but it alay robert de treated as infringing rights of the copyright proprietor in the prutlaklak of any new legislation.

The publishers will probably tell you that they, too, are for photocopying bat they want money for it without any outlay or trouble on their part. I stould love to joint out some reasons why licensing and payment of royalties by libraries for the photocopying they do is not justitied. First, many publishers already have variable pricing for journals; that is, they charge a considerably higher pair for the saine journal for a library subscription than for an individual subscriptions These prices to libraries often run quite high-subscriptions of $10%) to per rear are not uncommon; a few run $1.000 or more; and the $1 to $100 pruit is opite commonplace in the scientific field. These bigber subscription price fel libraries pro umably are designed in many (res to include charges for ant.) Danted copying. Some journal publishers have received substantial federal s*.. ance in modernizing their editorial and manufacturing pran Jures. Other journal and also some of those just mentiotird, have already had major contributin el public funds in the nature of per-page charges, usually in the range of info $100 per printed page paid by the author or by a felerul grant which is anating his work. The author is usually not paid by the publishes for his work in writ. the article but the library or the institution where the author is located af rends sinable amount for interlibrary loan postage and handling to aid him in preparation of his article which the periodical thien receives without cut. As an

Ynmpie, my own small library Nint during this past year over $100) o 11.!r3• Jibrary loan expose for boxk to enable a pralesor to write an article for all historical journal, but the journal did not pay bill anything for the arti le.

In licht of the tributions which the libraries and the public aires munke to the pullication of these work, it mun unrrasonable fur jour. publishers to demand till furtlar ayment from libraries and eventualıy the gublic, for the occuwjonai płotoxopying of indisidual articles for library user it 411 7 Okt unrenable in view of the fact that by taking Star 10 mation sur1. Mailable ta them with murrint, **tie ne font it. Library Hotimpan fier fet lle pure of the authors of such artiler. But wben it is als) noted that there is no psidence that the libraries wide ve (R'***] pel lib*t* any harm wlasneser and mar artrally increase their wriptiis, it is scar titt sich demnis are unplrtely unjustite and i be public in tim

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STATEVEXT OF JOHN P. MCDONALD, EXECUTIVE DIRECTOR, ASSOCIATION OF

RESEARC II LIBRARIES

The Association of Research Libraries, an organization of the principal univerity and research libraries in the country, believes that the copyright revision hill 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 ConRPS ns HR. 2223, gives explicit recognition to and protection for library photo(vgwing. 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 piblic 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) bare advanced no evidence showing that such practices in any way in jure their economic interests, much less evidence that it is in the public interest to forbid thetn. 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 cupied 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 # 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 U***s. It is simply one way in which published material is made accessible. Such copies 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 of Wilkins v. United States, the 1.6 Court of Claims held that the libraries' practices were a fair use of the poblished 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 ktatutory 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 interet to judicial “legislation", and conld 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 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 brancb 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 plausibile 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 Microfilins 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 neces. sarily 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

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