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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(g) (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. C'nlike 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-executive 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 reproducing a single reprint to fill each order, as it is received. One-at-a-time sprinting is well established, it has been used for several years by r.print publishers such as University Microfilms to supply books, journals, articles, and doctoral theses to individual customers.
Here, for example, is a copy of a 429-page book, entitled Teaching l'rimary Reading, produced on a Xerox Copy-flo machine by UniTersity Microfilms. The label reads, "Published on demand by University Microfilms," and that means very simply that each time an oriler is received for this book, one copy is reproduced separately on that machine to fill that order. I would like to leave a copy with the committee.
Mr. DANIELSON. Without objection, we will accept it in our files, though it will not be included in the record.
Mr. Karp. I understand that.
Mir. DANIELSON. We don't want to be violating any rules on printing copies. (Laughter.]
Vr. KARP. We are prepared to secure a license for you to use the bouk. (Laughter.]
In fact, that is one of the points. This book was produced under a licence granted by the author and publisher. I krow it because I approved the license, which is on a simple form, for a client of mine whose Inte husband wrote the book, and a royalty is paid each time one copy of that book is produced.
The process of one-at-a-time reproduction also is used to reproduce journal articles; and here is, for example, a journal article that was produced by the Xerox Corp., by permission of the copyright owner. I would like to leave that, too, not to include in the record, but for study by the committee.
Jr. İDANIELSON. I want to point out, I do appreciate having the material so that we know what you are talking about.
Jir. KARP. And last, to complete the demonstrative evidence, this volume-which is quite heavy-covers a listing of 10,000 separate journals which are placed on microfilm by the Xerox Corp. under license from the copyright owner, within the system of copyright, and will to libraries. From those microfilms are produced copies like this (indicating). We are not talking about the old-fashioned 50-cents-apage photostat, as you pointed out in your question; we are talking about new technology, and methods of reproducing copyrighted materials that are still in various stages of technological development.
I have one more item, this is called a microfiche card. This is even more sophisticated, and at the same time more simple to use, and much loun costly, than microfilm. From this little card a library can reproGure copies of pages of an article in this form (indicating). I will leave this for the committee's study as well.
The process of one-at-a-time reproduction is employed by several Tilraries, some of which serve as reprint centers for the patrons of other libraries, as well as their own users. There have been studies which indieate that at the present time American libraries may be filling as many 8-7 or 8 million requests a year for this type of copying. And we would like to, at the conclusion of this hearing, submit to you a compendium of reports, as well as statements directed to the specific proposals of that Imerican Library Association, which unfortunately were not available to us in advance to respond to as concretely as we would have Iked.
Mr. DANIELSON. Without objection, we will receive your referred to comments.
Mr. KARP. Much of this library-copying activity is devoted to articles from essential, copyrighted scientific and technical journals. Copies produced of these on demand of individual readers are given to them in lieu of the journal itself, which is published to serve this very audience. In Williams & Wilkins the chief judge in the Court of Claims pointed this out in his three-man dissenting opinion, supporting the opinion of the trial judge. Actually, if you add up the figures you have a complete Mexican standoff, you have four Court of Claims judges going one way, and four the other.
Mr. DANIELSON. That's what we call a congressional standoff, and when you have that, nothing passes.
Mr. Karp. He pointed out the argument that damage was not proven was utterly without basis in the record because the majority hadn't disproved the damages, they simply ignored the trial judge's findings.
The chief judge also pointed out in his opinion that the National Institutes of Health at the present time purchased only two subscriptions to the plaintiff's journals, and if nothing else, it certainly needs more than the two copies to meet the requests of the large in-house staff. And that the whole purpose of what everybody really concedes was wholesale systematic reprinting, was to do away with the necessity of paying for any more subscription copies of these journals. The literature of the library community is full of predictions of the state of the future which may resolve itself into a few libraries that in some instances, for certain types of publications, serve, as what Mr. McKenna quite accurately referred to as “reprinters" and "republishers."
I should point out that librarians' semantics have been a problem with us throughout this discussion. They like to talk about “interlibrary loans." When they make a copy of something like this (indicating an article) they don't lend it to anybody. At the Government's, or the local community's considerable expense the figures sometimes estimated at $5 to $12 a copy to do this--do all the work involved. They produce a copy which is delivered to a patron of their own, or another library, and it's his, not a loan.
I should at this time clarify on the top of page 3 I should not overlook one distinction. I pointed out when University Microfilms reproduces a copy of copyrighted work it pays a royalty. When the librarians reproduce it, they do not pay a royalty, and that's the crux of the issue, reasonable compensation for systematic library reproduction.
Most of the examples that Professor Low gave you are examples of "fair use" and that's not what we are quarreling about. Fair use is not paid for, it is not charged for; that is preserved very clearly in the revision bill.
As my colleagues will demonstrate, section 108 of this bill also gives the libraries broad copying privileges that we don't think they had under the present law. Moreover, authors and publishers do not seek to halt systematic library reproduction. We simply say that reasonable payment should be made when copying goes to this extent, and that workable systems can be established.
The discussions which have been described to you, on the one hand, have a wonderful Rashomon flavor. I can't believe I was there, when I hear Professor Low and his colleagues describing what transpired. To say that we, any of us, have a position that the mere existence of a union list of serials in a library system establishes "systematic copying” is simply not the case. In fact, asked twice, I twice answered that, “No, we were not saying that." We were merely pointing out the various characteristics of certain library systems in whose operations one of the functions was to eliminate what they euphemistically called duplication of periodicals. That means, why should all six or seven libraries subscribe to a journal when one can subscribe and make copies for the others!
The uncompensated reproduction, uncompensated reproduction of copyrighted work is bound to have a damaging effect on American publishers and anthors.
I would just like to talk briefly about the purposes of copyright. The economic purpose of copyright is, in the Supreme Court's quotation-on top of my page 5—to give valuable, enforceable rights to authors and publishers, to afford greater encouragement to the production of literary works of lasting benefit to the world.”
And the economic philosophy underlying the copyright clause, as the Supreme Court explains it is the conviction that the encouragement of individual efforts by personal gain is the best way to advance public welfare through the talents of authors."
Thus, the instrument chosen by the Constitution to serve the public inierest-that interest is the securing of literary and scientific works of lasting value is an independent, entrepreneurial property-rights system of writing and publishing. The Copyright Act establishes the rights which prevent others from depriving authors and publishers of the fruits of their labor. But, it guarantees no reward at all. The reward must come, as in any private, profit-motivated operation, from the income that the author and publisher can derive from the uses of their books and journals. They have to take the risk that every entrepreneur does, that the books and journals may fail financially, although they make a valuable intellectual contribution--and journals have failed
Mr. DANIELSON. Let me interrupt just briefly. I don't like to interrupt you, I have practiced law for a long time inyself, but you've got to share time here with three more of you gentlemen. If they want you to speak for them, I'm delighted, but otherwise I am going to have to let No. 2 go ahead.
Mr. KARP. I'm at the end of my statement.
Mr. Danielson. With the permission of Mr. Pattison we will hear from all the witnesses, and then commence with the questioning; thereby we will enhance the opportunity to hear you.
Mr. Karp. I simply want to conclude with the statement, Mr. Danielson, that we urge Congress not to disrupt the delicate balance of this system. Many compromises have been made by us already in order to accommodate librarians. We don't think any more are possible without inflicting very serious damage on those who create those journals.
I have also included in my statement responses to Professor Low's almost ritualistic attack on copyright. It is not a monopoly, not a special privilege: it doesn't restrict the dissemination of inforina
tion. I submit to you the only provision in the U.S. Constitution which implements the freedoms of the first amendment is the copyright law because that is the only provision that establishes a legal, economic foundation under which people can actually go about exercising those rights, by setting up publishing enterprises, or engaging in writing. Destroy the copyright clause--and the librarians are asking for partial destruction-and you are also threatening seriously that private enterprise system of exercising freedom of expression.
[The prepared statement of Irwin Karp follows:]
STATEMENT OF IRWIN KARP, COUNSEL, THE AUTHORS LEAGUE OF AMERICA Mr. Chairman, my name is Irwin Karp. I am counsel for The Authors League of America, the national society of professional writers and dramatists. I would like to introduce Dr. Robert W. Cairns, Executive Director of The American Chemical Society; and Mr. Townsend Hoopes and Mr. Charles Liel), President and Copyright Counsel of the Association of American Publishers. They will discuss sections 107 and 108 of the Copyright Revision Bill and the issue of "library photocopying".
The Xerox and other reprographic machines have established a new method of reprint publishing sometimes called "on-demand publishing," "one-at-a-time reprinting", or "single-copying" (the blander phrase favored by library spokes. men). However labelled, the process disseininates articles, chapters from books or entire works to individual users-by reproducing a single reprint to fill each order, as it is received. Each copy, made by Xerox or other machine, is an exact reprint of the original-letter by letter, line by line as initially set in type. One-at-a-time reprinting is well established. It has been used for several years by reprint publishers such as University Microfilms to supply books, journals, articles and doctoral theses to individual customers, "on demand". Here, for example, is a copy of a 429 page book, entitled Teaching Primary Reading, produced on a Xerox Copy-flo machine by University Microfilms. The label reads "Published on demand from University Microfilms."-i.e., when an order is received, one copy is reproduced separately on the Xerox machine to fill it.
The process of one-at-a-time reproduction is employed by several libraries to make copies of journal articles or portions of books; some of these institutions serve as reprint centers for patrons of other libraries as well as their own users. Much of this activity is devoted to articles from essential, copyrighted scientific and technical journals, many of which have modest circulations and are published by nonprofit learned societies. Copies of these articles, produced on demand of individual readers, are given to them in lieu of lending the journal, which is published to serve this very audience. My colleagues will explain the serious injury to publishers from this uncompensated, systematic reproduction ; and from its increasing use by groups and networks of libraries, in which one institution reproduces copies of articles from journals it subscribes to, for patrons of other libraries which do not subscribe to them,
With one-at-a-time reproduction ("single-copying", in library parlance), a library could make many copies of the same article or work. It produces a "single" copy for each order; but it produces as many copies of the article as there are orders for it. Under the exemption previously sought by library organizations in the Senate, any library could thus make many copies of the same article, so long as it produced one copy per order. (In the peculiar semantics of library organizations, copies produced for patrons of other libraries are called “interlibrary loans." Actually, no “loan" is made. The copy is delivered to the patron and becomes his property.
There is one significant difference I should not overlook. When University Microfilms reproduces a single copy of a copyrighted work, it pays the owner a royalty-having previously obtained a license. However, libraries claim, and demand Congress give them, the privilege of systematically reproducing copy. righted journal articles and other works without myment of compensation.
As this ('ommittee and the Copyright Office have stressed, the copyright owner's right to reproduce copies of his work is not subject to a "non-profit" exemption).
Reasonable compensation for systematic library reproduction is the real