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they diminish or destroy the ability of authors and publishers to serve the alt!. mate public interest to continue producing new works of lasting beneßt. The publication of scientific and technical journals, for example, richly serre the public interest-but it is at best a marginal economic operation. Learned undefin and others who publish them do not grow fat on their profits. Squeezed by ever increasing costs and statie circulations, publishers will be forred to clase de some journals or not start new ones if they are denied reasonable compensatio for uses of their articles in the new medium of systematic, library one-at-time reproduction. Periodicals and journals are neither immortal nor immune from the laws of economics. The process of attrition may not be apparent to library took men, but it is nonetheless inevitable. Yet, while they are willing to make substantial payments to the Xerox Corporation, suppliers and library employees to pro vide users with hundreds of thousands of copies of copyrighted articles, the demand of Congress the privilege of denying the journal's publishers ans - 3 freneation. (Ironically, libraries par the Xerox Corporation a perduge pm royalty, if you will for each page of each article they reproduce).
THE ANTI-COPYRIGHT ARGUMENTS
It has become ritual for library organization and Ad Hoc Committee stavke men to accompany their demands for new exemptions with a series of attacks of Copyright, calculated to suggest that the author has no legitimate claim to mi sonable protection for the work he creates.
THE "ANTITRUST ARGUMENT"
Library and Id Hoe ('ommittee spokesmen charge that a copyright is a "mobi oli". *uxgenting it oftends the Sherman lot. This is not a. The copyright in a two is not a "monopoly" in the antitrust sense. It does not give the author (ur.ru orer the market in books, or the business of publishing them. His book mustruar wle in the market place with the 10.00) other title publisk10! that year and the hundrels of thousands still in print from prior years, including mans that desi with tlie Name mbject. His copyright only give him ertain rikhis to ux tle book he created. The owner of a «opyright only has a “monog" in the inte******
* I*that all property owners de Pach anns a collection of rights, granted by law, to me that which he has created purchawd or inheritel.
TIIE "RESTRAINT OF INFORMATIOX" ARIST
Library and Id H ('ommitted s kesmen charge that a copyright polip
trairit on information. This is not so patent prevents where from 040'be 10+ it prote4 Aopsricht di***not impue* $14 th restrain'. Ansone is free ! use the ideas. factor information presented in a copyrighted bwk or article. The copyright only protects the author's expression, not the ideas, farts or info main. Onther writers un draw on the other writers are in to independentir arap mallar indd c ly minilar works; the copyright als jare 2* klub startill ing of the author's presion
In Progress and Peterty, Henry Gipome made this trenchant carerration abent Drisht
of right ... do not present anr one from thing for himse!! the Mets, the kuoneixe, the laws of tombinations for a similar pronation, but only free the idential form of the particular turk or other promilletion the actual intar w b a in- rt nefndin prilor"lug it. It re* therefore upon the natural 13aral na hit of
the fry enjoy the must of his own trri, and invulre no interfere with the similar risht at any one else fa do likestise,
tor (opy richat is therefore in acrurdanop with the oral law --- . 411)
THE MIRE PRI 11 X*** AROOMI
Tillbrary ar! Ad Hotmaili trup afrok pomen, It marks ima rality tn 11 wat bat the au'hor has a moral claim to irricht protein in a work that he Cre thit #1!d not have eT! hnt fir his talent, lalker and creative efforts.
la tre barns mory, raise armles and regulate commerce. Obviously Sec. 8 in. oled that Googts kould enact cypyright laws as well as exercise there other 1.**. funt*DN.
titures copyright is property. Like all other proprerty, it is "a creature and * of law..." 173 CJ8 Sec. 1. p. 113). Like all property, it is a bundle of * ** praoted by the state, through legislation or court de inlon (op right in
''s truly form of property created by statute. Property rights in billions of 3.413 kotta Land, minerals and other natural resources have been created by '* grper 1:13 trip loje bale dixtinction. The other statutos krant individuals per ' al excitive rigts in rouryo tout belonged to the Nation, they take prop por Irim the public doaiain and give it to private citizens. The o right Art X' .t e autor righ*- in situetkilig he created and that already belonged to him * L alaw, abd with a short time, the Art tak *** his creation from him or ... sin and places it in the publie domain. Henry George was right in way! * matris claim to adequate copyright protetton nimi on "batural, mural *6 The festis su law ren u that right, holding that an author has an vule primary right in his productwa waleta de could not be deprived of so
a at tua twd unpuble bed, nor auld he te cutpelled to publish it." (Herria I romanAnd as the Register noted, there exclusive common law rigtis "con.
with the limit even though the work is Uned conuentially and widrig
inal) aud Ad lie (btatult tepsibellen hare not asked ('ongrexs to grant : wala an pirmpti ir tas pintty rights of the Xeros (or ratlanulta ..4;ermit them to use its machines without tarke to reduce alle coles" Hipal artules vt obrt ingerichte work lirorty rights in machinery is
!L...g that aparentiy wins their t. But the pricht in her's rimtat ta
=.4": fp stafmatie library reprinduction stands on ppually or tsarai .. *kai fawing Alle ti!ttdat to the l.braries is ingerations is indis. ...
. African (bet i ets and other publishers (an ang .. 1 *!" Ingelheir futurnal, the Jerus martuines und livraries will not
or periodical, they are often reprinted with the author's permission—in anthologies, text books, periodicals, collections of the author's work, etc.
Many authors earn a substantial part of their income from such reprinting of their works. Indeed, many earn the major part of their compensation in this mallner. Poets, essayists and short story writers, for example, receive very little when a work is first published in a hard-cover book or periodical. But over the years that follow, they may license several different publishers to reprint the poem, short story or essay in anthologies or collections or textbooks. Although each fr is small, the accumulation of fees produces a modest compensation for work of substantial literary and educational value. As testimony before your Subcommittee indicated, many of these writers earn from 50% to 75% of their income froni these reprint fees.
Authors of books also earn a significant part of their compensation, in many instances, from authorizing the reprinting of portions of a work-of similar size to periodical articles--in anthologies, textbooks and other collections. Testiising before the Senate Subcommittee, John Dos Passos noted that a considerable part of his income from writing. in recent years, consisted of royalties from licenspend to) reprint portions of his books in this way. And the Xerox machine has developed a new, authorized method of reprinting poetry, articles, etc. Certain reprint poolslishers now prepare customized anthologies, on demand, for college and university classes. Articles or other works are selected by the professor, the reprint publisher obtains permission from the copyright owner, and produces just enough copies of each piece, bound together, to serve the needs of the class or classes. Royalties are paid to the author.
If libraries--including college and university libraries were given the power to systematically reproduce single copies of poems, articles and sections of besks without compensation, authors would be severely damaged. The process of supplying these copies-e.g. one to each student in a college class in literature or politiral science can replace several copies of an anthology or book in the library or Site eral copies of a paperback collection or text in the college book store. It is not necessary for the copies to be bound, so long as they are provided, they replace the authorized copies for which the author would have been paid-the anthology, (16 tomized anthology, textbook, etc. Unless authors are compensated for uses nftlinir works by audiences reached by the medium of systematic library one-at-a-time reprinting, they will be deprived of a substantial part of their income.
Various reports have documented the enormous increase in unauthorized so. tematic library one-at-a-time reprinting of journal articles and other copyrighted works (e.g. the Sophar & Heilprin Report for Office of Education, in 1967). And it is common knowledge that the amount of copying in large libraries, library groups and networks, and in university and college libraries has increased trepen)dously since the report made by Sophar and Heilprin 9 years ago. Moreover, the provisions of the Revision Bill must deal with the amount of such copying that will occur next year, 10 years from now, and 20 years from now.
Library spokesmen could hardly guarantee that an exemption permitting them to engage in systematic reproduction would not seriously injure authors, journal publishers and other publishers. Furthermore, an eremption for systematic library reproduction could not draw a line-specifying that if an author or publicher suffered a prescribed degree of injury from library reproduction of his artirls, poems or stories, libraries must cease one-at-a-time reprinting of his works. The only rational solution is that proposed by this Subcommittee, workable lirensing arrangements which would provide authorization for libraries to copy, and provide reasonable compensation for authors and publishers.
In the light of copyright history, it would be dangerous to assume that uncompensated systematic library reproduction will not inflict substantial damage. Starting with the phonograph record, every new process of dissemination has been greeted with the same "it's not a threat" attitude the library spokesmen have expressed toward systematic one-at-a-time reprinting. Had authors been deprived of compensation for uses of their works in motion pictures, radio, television and mass-market paperbacks, few could today earn any reasonable compensation from their writing.
It should be emphasized that library reproduction of articles is not "note tak. ing" or a substitute for copying by individual readers. Persons who obtain copies of articles from a library or publisher are not receiving handwritten notes they are acquiring reprints of printed articles or other works, several pages longjust as they buy or acqnire other printed materials to avoid the dozens of hours it would take to copy that much by hand. Each copy costs money to produce. Nor could users reproduce the copies themselves. Many patronize libraries that do not
hare the journals. The copies are reproduced for them in libraries dozens or hundreds of miles away. And where the user's library subscribes to the journal, it will produce and give him a reprint of the article he wants, rather than lend the journal-so that it can keep the journal itself available to reproduce copies of articles for other patrons, and avoid losing this reprint master through wear and tear, a user's negligence or theft.
Vr DANIELSON. Mr. Lieb, counsel for the Association of American Publishers.
TESTIMONY OF CHARLES H. LIEB, COUNSEL FOR THE ASSOCIATION
OF AMERICAN PUBLISHERS
Mr. LIEB. I would like to preface the reading of excerpts from my statement to remark that, judging from the testimony this morning from our friends representing the libraries, I think that today, sadly, we are further from a reasonable compromise on the photocopying problem than we have been for the last 4 or 5 years.
Today, for the first time in recent years the libraries say that they oppose the provision against multiple copying, a section with which they have been in agreement since it appeared in the 1969 Senate bill. Today, also, for the first time they say they want the elimination of the inhibition against reproduction of audiovisual, musical, and other materials.
Similarly, for the first time in recent years this kind of hard-line position is taken not by some but hy all the libraries, and that is a regressive, not a compromising position.
They say today in answer to the question that was asked them about damage to the publishers, that they don't think the publishers are being damaged. The publishers, of course, have no way of knowing how much library copying is being done, but their own operating statements tell them that their results are not what they expected.
But, Mr. Anthony Ottinger from Harvard University, from which mir friend, Mr. Sharaf, operates as well, submitted on February 26 of this year a report under contract of the National Commission on Libraries and Information Sciences, a report entitled “Elements of Information Resources Policy," which had this to say, at page 105:
The practice of photocopying hy interlibrary loans adds another dimension to the problem. Significant proportions of interlibrary loans are met by what are called non-returnable items. Unfortunately trend data on this score are not nvailable. Data on this score disappear altogether from the 1969 report on library statistics of colleges and universities, and reappear in the 1971 data only Hır number of participating institutions, without transaction volume being ziren.
And Professor Ottinger from Harvard finishes this paragraph with the following, “It is hard to avoid the suspicion that these important data were suppressed as sensitive intelligence in the war over the ('onvright Revision Bill."
The position of the Publishers Association in brief is that we support the provisions of section 107 of H.R. 2223 with respert to fair use and we support the provisions of section 108(f) (3), which make clear that libraries are entitled to the benefit of this doctrine. We support, also, the additional conving privileges extended to libraries in section 108, but we are opposed to any further limitations on the rights of authors and other copyright owners; and we are opposed in particular to the elimination of what we thought was being challenged today namely, the section with respect to systematic copying. And we are also opposed to modification of what we learned this morning is being challenged, namely the preceding subsection, which inhibits multiple copying.
Much of the copying that Professor Low spoke about this morning, his poor boy in Arkansas who wants to copy a page, is permitted under the principles of fair use. In addition, much duplication over and above these permissible limits would be permitted under 108. And the American Library Association's Subcommittee on Copyright, of which Professor Low, I believe, was chairman, was more candid in its committee report which was submitted last July to the Library Association than, I think, he was with you this morning.
He said in that report-and I'm quoting—“We now have provisions under section 108 permitting photocopying of archival material; copying for preservation; freedom of liability for copying done by users on coin-operated machines on library premises, and the highly important provision permitting the making of single copies for normal interlibrary loan work.”
“On the other hand,” the report continues, "we have not been able as yet to reach agreement on ‘systematic copying a term used to describe copying in a system or network where one library agrees to discontinue its subscription to a journal and depend on another library in the network to make photocopies of articles from this journal when needed.”
“Copyright proprietors, rightly or wrongly, believe that such systems or networks constitute a potential threat to their rights and want to prohibit such copying without license. We, of course, would like to see as few restrictions as possible.”
Agreement has not been reached on systematic copying. It has not been reached, because the libraries, as Professor Low intimated to you this morning, walked away three times from us—and Mr. Hoopes will elaborate on that-in our efforts to put flesh on a statutory design which by a series of guidelines would establish what kind of copying is permissible, and what is not permissible.
We stand ready to work out agreements with respect to these guidelines. We stand ready to establish a clearance and payment system at our expense--not the libraries'. But so far the libraries have not been forthcoming in this regard.
Mr. DANIELSON. Well, you actually have a minute left. (Laughter).
Mr. LIEB. My friend was rushing me, I think he'd rather hear from Dr. Cairns. I will yield to him. Thank you.
[The prepared statement of Charles II. Lieb follows:7
STATEMENT OF CHARLES H. LIEB, COPYRIGHT (COUNSEL FOR THE ASSOCIATION
OF AMERICAN PUBLISHERS, Inc. I am Charles H. Lieh. I am a member of the law firm of Paskus, Gordon and Hyman of New York City. I appear in behalf of the Association of American Publishers, Inc. for whom I am copyright counsel. Appearing with me are Townsend Hoopes, President of the Association, from whom you will hear later; Alexander C. Hoffman of Doubleday and Company, Inc., who is chairman of the Association's Copyright Committee; and Susan Engelhart, the Association's staff director for copyright.
The Association of American Publishers is a trade association of book publishers in the United States. Its 265 member companies and subsidiaries are believed to produce 85 per cent or more of the dollar volume of books publisbed