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ing a single reprint to fill each order, as it is received. One-at-a-time rprinting is well established, it has been used for several years by rprint publishers such as University Microfilms to supply books, jurnals, articles, and doctoral theses to individual customers.
lere, for example, is a copy of a 429-page book, entitled Teaching l'rimary Reading, produced on a Xerox Copy-flo machine by University Microfilms. The label reads, “Published on demand by University Microfilms," and that means very simply that each time an criler 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.
Vir. DANIELSOx. 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 book. (Laughter.]
In fact, that is one of the points. This book was produced under a license 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 late 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.
Mr. DANIELSON. I want to point out, I do appreciate having the material so that we know what you are talking about.
Jlr. 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 Tironse from the copyright owner, within the system of copyright, and bull to libraries. From those microfilms are produced copies like this Findicating). 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 les costly, than microfilm. From this little card a library can reproluce 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 Bibraries, some of which serve as reprint centers for the patrons of other libraries, as well as their own users. There have been studies which indiaute that at the present time American libraries may be filling as many 07 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 tlit 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 interest--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 myself, 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 is already in order to acrommodate 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 informa
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.
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 spokesmen). However la belled, the process disseminates 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, in 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."-ile, 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.
Where is one significant difference I should not overlook. When tiniversity 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 ('ongress give them, the privilege of sistematically reproducing copy. righted journal articles and other works without payment of compensation. LAs this ('ommittee and the Copyright Office have stressed, the copyright owner's right to reproduce copies of his work is not sulject to a "non-profit" exemption).
Reasonable compensation for systematic library reproduction is the real issue. Library photocopying which is "fair use" (Sec. 107) does not require guayment. And as my colleagues will explain, Secs. 108 (d) and (e) give libraries bruad copying privileges, without charge. Moreover, authors and publishers do not seek to halt systematic library reproduction, i.e. that which exceeds these sections. They are willing to authorize such uses. But they believe that when libraries systematically reproduce copyrighted articles or other works, Tsonable compensation should be paid, as Sec. 108(g) contemplates. They also believe that "workable clea rance and licensing conditions" can be developed mutually by librarians and copyright owners, the solution prescribed by this Committee. My colleagues will relate the continuing efforts to accomplish that result. It is a result that must be achieved. For uncompensated systematic reproduction of copyrighted works by libraries will intlict heavy damage on publishers of scientific and technical journals, authors (see Am. I) and other publishers; on the copyright system; and on the public interest it was designed to serve
THE PURPOSES OF COPYRIGIIT The library photocopying issue should be considered in the appropriate context-in the context of copyright's constitutional purposes and the manner in which it was designed to serve the public interest. I will address that subject before Mr. Lieb, Dr. Cairns and Mr. Hoopes speak to the specitic photocopying issues,
As the Supreme Court has explained, the Copyright Clause of the Constitution was intended to establish independent, entrepreneurial, self-sustaining authorship and publishing as the means of serving the public interest in securing the production of valuable literary and scientific works. In so doing, the Copyright (latise serves a second purpose it implements the First Amendment's freedoms to express and publish ideas, information, opinions and all manner of literary, mrientific and artistic works. The First Amendment protects against restraints on these freedoms. But the Copyright Clause is the only constitutional provision whirb establishes a legal-economic foundation for exercising them. The ('opis. richt Clause thus frees authors from the need for subsidization by the state or other powerful, institutional "patrons", and from the restraints such support often imposes. And it was intended to sustain the existence of a diversity of independent publishers, who would give a wide range of viewpoints access to the market place of ideas.
THE "ECONOMIC PHILOSOPHY" OF THE COPYRIGHT CLAUSE The Supreme Court has emphasized that the Copyright Clause of the Con. stitution "was intended to grant valuable, enforceable rights to authors, publishers, etc. without burdensome requirements; 'to afford greater encouragement to the production of literary (or artistic] works of lasting benefit to the world.'" The Court said that the "economic philosophy" underlying the Copyright Clause "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...
(Mazer v. Stein, 347 C.S. 201, 219) Thus, the instrument chosen by the Constitution to serve the public interest i.e.. the securing of literary and scientific works of lasting value is an independent, entrepreneurial property-rights system of writing and publishing. The (opyright Act establishes the rights which prevent others from depriving authors and publishers of the fruits of their labor. But it does not guarantee a fair reward, or any reward. For authors and publishers, both commercial and nonprofit, must depend on income derived from uses of their books and journals to compensate for the talent, labor and money expended in creating them, and provide working capital for further publications. And as entrepreneurs, they must nesume the ever-present risk that books and journals produced by substantial labir and cash outlars will fail financially although they make valuable intel. lectual contributions to the public interest.
We urge that Congress should not disrupt the delicate balance of this essential erstern. Carving exemptions out of the “enforceable rights" of authors and puls lishers does not serve the public interest. For although the resulting uncompensated uses may further the convenience or ambitious plans of some "user" group,