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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
(6) 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 g 108(g) (2)-as now statal in 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 "Hy8tematic" does not seein 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 from 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 requestorach 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 systems 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 suils scribers 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 (ichether intended for aggregate use by one or more indiciiluals 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 emphagis above), payment 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.
(b) 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 fuge. 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 Ieriodical 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 al nould be induly 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 rezolatory 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 surh a high level that access to some areas of published information could be effectively prevented.
5.3 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 betreen perforinances or sound recordings and music in printed form.
6. 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 beginning 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 specialized, 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 re(riving photocopying fees. However, the establishment of library photocopying 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 airporation. As the expenses of a corporation increase, such expenses can lead only 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 photocopsing 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,
CONGRESS OF THE UNITED STATES,
HOUSE OF REPRESENTATIVES,
Washington, D.C., October 2, 1975. Hon. ROBERT W. KASTEN MEIER, Chairman, Subcommittee on Courts, Civil Liberties, and the Administration of
Justice, Committee on the Judiciary, Rayburn House Office Building, House
of Representatives, Washington, D.O. DEAR BOB: I am concerned over current legislation in your Subcommittee, H.R. 2223, to revise the copyright law. If Section 108(g) (2) is retained in this bill, the only major biomedical source library in the State of Alaska will be in violation of the United States Copyright Law.
The Alaska Health Sciences Information Center serves as the source library for most of the material required by institutions and over 4,000 health-related personnel in the entire State of Alaska. This service makes it possible for doctors, nurses and physician assistants in the most remote Alaskan villages to receive the information they need to provide optimum health care. Because of poor communications, lack of transportation and other related problems common to rural areas in which a small number of people are scattered over vast distances, community health aides, private practicing physicians, Public Health Service personnel, hospitals and universities depend heavily upon the freedom to copy medical journals and texts for use in the bush areas.
Section 108(g) (2) will affect not only Alaska, but other sparsely populated areas of the United States as well. I urge you to consider the elimination of this Section of H.R. 2223, so that the current efforts of Congress to upgrade existing health facilities in these remote areas of the country will not be further hindered.
I have received over one hundred letters from physicians, nurses, hospitals, clinics, universities and state health personnel who protest inclusion of this Section of the bill. I have chosen a number of letters from each group of health personnel for your perusal. I request that these letters, as well as my own, be included in the testimony of the hearings on H.R. 2223. Sincerely,
Congressman for all Alaska. ALASKA METHODIST UNIVERSITY,
COLLEGE OF NURSING,
August 12, 1975. Representative Don YOUNG, C.S. House of Representatives, Washington D.C.
DEAR REPRESENTATIVE DON YOUNG: I am writing to express opposition to the section on photocopying in H.R. 2223, section 108(g) (2) regarding Revision of the Copyright Law.
Photocopying of books and articles is extremely helpful to both students and faculty. It provides an inexpensive and rapid way to acquire, read and synthesize new materials, thus greatly enhancing the quality of education in schools and universities.
Regarding the need of nurses and other health professionals, I feel sure that you know it is impossible for nurses and health facilities to subscribe to all the journals they need to keep abreast of the vast volume of current information.
Therefore, I believe that health care of patients in Alaska may be compromised if the Alaska Health Sciences Information Center is no longer permitted to photocopy valuable articles for nurses and other health professionals. Very truly yours,
MONA Ravin, R.X., USX, Instructor Coordinator of R.N. Programs and Outrcach.
Anchorage, Alaska, July 9, 1975. Hon. PETER W. Rodixo, Jr., Chuirman, Judiciary Committee, House of Representatives, Room 2462, Rayburn
Ilouse Building, Washington, D.O. DEAR CONGRESSMAX Rodixo: I am writing to express my opposition to IIR 2223 (A Bill For the General Revision of the Copyright Law Title 17 of the l'nited State).
If this takes effect, the effect upon quality medical care nationwide will be adverse, and in Alaska will be even more significant, due to our relative isolation, there being no nearby university centers, To pass this resolution would be a significant step backward in medical care. Sincerely,
MAURICE J. COYLE, M.D.,
Department of Radiology. WRANGELL GENERAL HOSPITAL,
Wrangell, Alaska, July 22, 1975. Hon. DONALD YOUNG, House of Representatives, 1210 Longworth House Office Building, Washington, D.O.
DEAR CONGRESSMAX YOUNG: I am writing to you regarding HR 2223. (A Bill for the General Revision of the Copyright Law Title 17 of the United States.)
The passing of this bill would terminate all major medical library services presently provided by the Alaska Health Sciences Information Center in Anchorage. This library is the only biomedical source in Alaska and without this service to help small hospitals like ours, the quality of health care will surely suller. Your help regarding this bill would be greatly appreciated. Sincerely,
(Mrs.) Emma G. Ivy, R.N.,
THE WISCONSIN INTERLIBRARY LOAN SERVICE,
Madison, Wis., Jay 6, 1975. Re Deletion of Section 108 (g) (2) of the copyright revision bill (H.R. 2:223). To: Robert W. Kastenmeier (D-Wis.), Chairman, Subcommittee on Courts, Civil
Liberties, and the Administration of Justice. From : Nancy H. Marshall, Director of WILS.
As one of your constituents, I have always been grateful for your support of libraries and federal library programs, including your recent positive vote on the Roybal-Obey-Stokes amendment to the Education Appropriations Bill (HR 5901).
I have written to you several times in the past on what I believed to be important issues and was gratified that you, also, shared my concerns. The issue in question is of such immediate importance that as a citizen of Madison, Wisconsin, and the nation, as well as a librarian, I must speak out.
Your concern over the past fifteen years or more with copyright revision makes yon a recognized expert in Congress on this complex issue. You have heard the pros and cons and have had before you voluminous written arguments and testimony, with more to come. HR 2223 is a "good" bill, much needed and long overdue. My concern, however, is whether it is the intent of the Congress to severely liinit or restrict altogether the public's access to library and information resources via library photocopying. I cannot believe this is the intent of the public's elected representatives. The nation's library collections are one of its greatest resources, and libraries maintain as a constant goal the widest possible access to those collections by the nation's citizens.
Although I am aware of the fact that national library organizations, and the publishing industry will be giving testimony to the Subcommittee on May 14, I am deeply concerned that the interests of the consumers of library and information resources be represented. Too often the user is overshadowed and not heard and remains the silent majority, even though s/he is the ultimate recipient for good or ill in many legislative actions. Thus, it may be in this case, and on behalf of the users I submit the following for your consideration.
Specifically, my greatest concern is with the language of Section 108(g) (2) of HR 2223. This Section prohibits “... systematic reproduction or distribution of single or multiple copies or phonorecords of material ..." by libraries. Section 107 appears to appropriately define "fair use", an historical privilege of libraries, and then effectively snatches it away under 108(g) (2).
Of particular concern is the fact that systematic reproduction is not defined, and is, therefore, dangerously ambiguous, but if retained in the Bill could be interpreted to effectively discontinue the traditional right of libraries of making a single copy of a copyrighted journal for a single user, even when the number of users and the volume of single copies is substantial. Again, I cannot believe that the Congress wishes to deny, under the new copyright revision, this historically proper access to library resources.
On behalf of the Wisconsin Interlibrary Loan Service, its member libraries and, most importantly, its patrons, I urge the Subcommittee to delete Section 108(g) (2) from the Bill. As the Director of the WILS Network, which serves all of the citizens of the state of Wisconsin in providing access to library materials for research and other educational purposes, it is inconceivable that this access will be cut off and that the taxpayers of this state will be prohibited from obtaining materials by photocopy, materials which their tax dollars have been instrumental in purchasing. Wisconsin is not alone in this concern. It is important to note, also, that the National Commission on Libraries and Information Science, in its final draft issued on March 10, 1975, restates its philosophy of greater, not less, access to library and information resources by all the citizens of the United States.
I have witnessed your concern for the citizens of Wisconsin and the nation, and the concern of the other respected members of the Subcommittee for their constituencies. Because of your collective past commitments, I respectfully request that you give serious consideration to the deletion of Section 108(5) (2) when you report HR 2223 out of committee.
Mr. DANIELSON. First of all, I will call Mr. Irwin Karp, who is counsel for the Authors League of America, Inc. You gentlemen make yourselves comfortable, and ladies. I note you are all here together, which is fine.
Our little schedule calls for Mr. Karp first, then Mr. Lieb, Dr. Cairns, and Mr. Hoopes. Mr. Karp, it's yours for 7 minutes.
TESTIMONY OF IRWIN KARP, COUNSEL FOR THE AUTHORS
LEAGUE OF AMERICA, INC. Mr. Karp. Thank you, Mr. Chairman. My prepared statement reflects that we are here by prearrangement at the table together. Unlike the librarians I am not one to say that publishers are my best friends because I represent professional authors, and publishers are not our best friends; and that's true of librarians, too.
I would like to introduce Dr. Robert Cairns-on my right-exerutive director of the American Chemical Society. On my left. Mr. Charles Lieb, counsel, and Mr. Townsend Hoopes, president of the Association of American Publishers. They will discuss the issue of library photocopying in relation to sections 107 and 108 of the bill.
Let me set, if I may, the stage for their discussions. The Xerox and other reprographic machines have established a new method of reprint publishing sometimes called "on-demand publishing," "oneat-a-time reprinting," or "single-copying.” Perhaps it's most starkly reflected in the statement of the Special Libraries Association, which wants to increase the library copying exemption to cover the “reprinter" and "republisher," and they are correct in characterizing libraries as such. This is a new medium for disseminating articles, chapters from books, or entire works for individual users by reproduc