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they diminish or destroy the ability of authors and publishers to serve the ultimate public interest—to continue producing new works of lasting benefit. The publication of scientific and technical journals, for example, richly serves the public interest-but it is at best a marginal economic operation. Learned societies and others who publish them do not grow fat on their profits. Squeezed by everincreasing costs and static circulations, publishers will be forced to close down some journals or not start new ones if they are denied reasonable compensation for uses of their articles in the new medium of systematic, library one-at-a-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 spokes. men, but it is nonetheless inevitable. Yet, while they are willing to make substantial payments to the Xerox Corporation, suppliers and library employees to provide users with hundreds of thousands of copies of copyrighted articles, they demand of Congress the privilege of denying the journal's publishers any com: pensation. (Ironically, libraries pay the Xerox Corporation a per-page fee 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 spokes. men to accompany their demands for new exemptions with a series of attacks on copyright, calculated to suggest that the author has no legitimate claim to reasonable protection for the work he creates.
THE "ANTITRUST ARGUMENT"
Library and Ad Hoc Committee spokesmen charge that a copyright is a “monop oly", suggesting it offends the Sherman Act. This is not so. The copyright in a book is not a “monopoly" in the antitrust sense. It does not give the author control over the market in books, or the business of publishing them. His book must conpete in the market place with the 40,000 other titles published that year and the hundreds of thousands still in print from prior years, including many that deal with the same subject. His copyright only gives him certain rights to use the book he created. The owner of a copyright only has a “inonopoly" in the innocnou8 sense that all property owners do- each owns a collection of rights, granted by law, to use that which he has created, purchased or inherited.
THE "RESTRAINT OF INFORMATION" ARGUMENT
Library and Ad Hoc Committee spokesmen charge that a copyright places a restraint on information. This is not so. A patent prevents others from using the ideas it protects. A copyright does not impose such restraints. Anyone is free to use the ideas, facts or information presented in a copyrighted book or article. The copyright only protects the author's expression, not the ideas, facts or information. Other writers can draw on them. Other writers are free to independently create similar (indeed closely similar) works; the copyright only prevents substantial copying of the author's expression.
In Progress and Poverty, Henry George made this trenchant observation about copyright:
"('opyright ... does not prevent any one from using for himself the facts, the knowledge, the laws or combinations for a similar production, but only from using the identical form of the particular book or other production-the actual labor which has in short been expended in producing it. It rests therefore upon the natural, moral right of each one to enjoy the products of his own exertion, and involves no interference with the similar right of any one else to do likewise ..."
The Copyright is therefore in accordance with the moral law-- (p. 411)
TIIE "MERE PRIVILEGE" ARGUMENT To Library and Ad Hoc Committee spokesmen, it smacks of immorality to sug. gest that the author has a moral claim to copyright protection in a work that he created, that would not have existed but for his talent, labor and creative efforts. They charge that copyright is not "property" because the rights are created by statute, and that Congress is not required to pass copyright laws since Art, I. Sec. 8 "merely” says that it "shall have the power" to do so. But the phrase "Congress shall have the power" does not precede the copyright clause of Sec. 8-it prefaces the enumeration of all powers granted to (ongress, including the powers to collect
tasex, borrow money, raise armies and regulate commerce. Obviously Sec. 8 in. tended that Congress would enact copyright laws as well as exercise these other Fital functions.
of course a copyright is property. Like all other property, it is "a creature and creation of law ..." (73 C.J.S. Sec. 1, p. 145). Like all property, it is a bundle of rights granted by the state, through legislation or court decision Copyright is barily the only form of property created by statute. Property rights in billions of dollars worth of land, minerals and other natural resources have been created by acts of Congress.
But there is one basic distinction. These other statutes grant individuals perpetual, exclusive rights in resources that belonged to the Nation; they take property from the public domain and give it to private citizens. The Copyright Act grants the author rights in something he created and that already belonged to him *t common law; and within a short time, the Act takes his creation from him or his heirs and places it in the public domain. Henry George was right in saying
be author's claim to adequate copyright protection rests on "natural, moral right". The common law recognized that right, holding that an author "has an ao clute property right in his production which he could not be deprived of so llig as it remained unpublished, nor could he be compelled to publish it." (Ferris 1. l'rohman). And as the Register noted, these exclusive common law rights “contuntle with no limit even though the work is used commercially and widely di setuinated."
Library and Ad Hoc Committee spokesmen have not asked Congress to grant thom an exemption from the property rights of the Xerox Corporation which would permit them to use its machines without charge to reproduce "single copies" of journal articles or other copyrighted works. Property rights in machinery is sumething that apparently wins their respect. But the copyright owner's right to
n sation for systematic library reproduction stands on equally firm moral and legal footing. And his contribution to the libraries' copying operations is indisjuneble. C'nless the American Chemical Society and other publishers can afford to continue producing their journals, the Xerox machines and libraries will not hare articles to reproduce.
**WORKABLE CLEARANCE AND LICENSING CONDITIONS" CAN BE ESTABLISHED
The Xerox machine, one-at-a-time reprinting and other reprographic processes are not the first technological changes to confront authors, publishers and the cups right system. Motion pictures, radio, long-playing records, television, and the Intensive mass-market paperback book all produced enormous transformations in di*minating copyrighted works. Some new media destroyed prior ones. Others, $11h as the mass-market pa perback, reached millions who do not use its stillsurriring predecessor, the traditional "hard-cover" book. Motion pictures, radio and television were not even mentioned in the 1909 Act. Yet it has protected the rights of authors and publishers to these new uses, and they are entitled to receive
mpensation when their works are reproduced or disseminated in these recently arrire media.
Moreover, the concept of copyright has enabled authors and publishers, and Ouers, to evolve workable licensing arrangements. “Workable clearance and licensing conditions" also can be established for systematic library photocopying, through the joint efforts of librarians and copyright owners. But that solution will be aborted if Congress revises Sec. 108 to deprive authors and publishers of the right to compensation when libraries systematically reproduce copies of journal articles and other copyrighted works. Destruction of that right would be totally unfair to those who produce these works; it would frustrate the purpose of the copyright clause; and it soon would be harmful to the public interest and to those very patrons the libraries wish to serve by systematic reproduction.
APPENDIX I l'ncompensated systematic library reproduction would also damage authors of pentry, fiction, and books and articles on political and social problems, biography, history and a wide range of other subjects. After these works first appear in a book
or periodical, they are often reprinted with the author's permiss100-in 45 thologies, text books, periodicals, collections of the author's work, etc.
Many authors earn a substantial part of their income from such repriptis their works. Indeed, many earn the major part of their compensation in this t** Der. Poets, essa yists and short story writers, for example, freire very litsie '. a work is first published in a hard-cover book or periodical. But over the Fr;** that follow, they mas license sereral different publishers to reprint the ** short story or essay in anthologies or collections or textbook. Although *** * is small, the accumulation of fees produces a modest compensation for it! substantial literary and educational value. As testimony before your suby' tee indicated, many of these writers earn from 30 to 73% of their incourt these reprint fees.
Authors of books also earn a significant part of their compensation, in *** instances, from authorizing the reprinting of portions of a work of similar to periodical articles in anthologies textbooks and other collectione. Tritts. before the Senate Subcommittee, John Dos Passos dotal that a considerable fr** of his income from writing in rent par (mitor of rotati frotnie reprint portions of his books in this way. And the Xerox machine has devel» a new, authorised method of reprintink poetry, articles, etc. (ertnin repri'!!!. li her now prepare customize anthologips, on demand for all our and uri *** clase. Article or other works are wanted by the profpear, the reporint jilii ** obtains permission from the copyright owner, and provin:( just enough p **** each pirve, bound together, to serve the needs of the class or classes, Rosalipeste paid to the author.
If libraries including college and universitr librarie_were given the p * to systematically reproduce single (ties of ink, article and sertions of te without wompensation, anthore would be wetenrlr damage. The pro*** **: * ing these ape g . One to ench student in a ll grains in 'iterature oro." science an replace seterul expiry of an artilegt or twk in the library of ** erat copies of a paperback collection or text in the fire bokstore. It is **
Wars for the entien to be wind, saloten thri are or vide the relation authorized copies for which the author wonilhirelve fi fuld tie antheregt!** tomizel anthology, textbook, pte l'nle authors are 0 m e s for 11m*p! works by andieners reached by the medium of misfeiratie lihas oneat-a ! reprinting, they will be deprived of a suhrnntial part of their intime, Varion Texrts have dewmonto the porno
rese in unaniye T. tematic librarr one-at-a-time reprinting of journal articipe and other coprir! works (ex the soplar & Heilprin Report for free of Education, in ***! And it is common knowledige that the amount of conting in large librari. Iata,"} grad and networks, and in animaruits and anoge libraries has incrowd the ** doily since the rigirt made by Sophar and Heilprin Osears ago, JANT 1 provisions of the Heti jon Bill must deal with the a mint of such cupying t! : wilt m ir next year, 10 years from now. and I ren from i
Library «pkamen rond hand guarantee that in pieptan part Iiting !!! to engage in systematic reproduction wonld nat wär r in inre anth $**** public and other publishers. Furthernet 1 Alpargatant for sterratirimin
Tentuction could put dne a line-f ifting that if an author or pot ener a prescri date of iniurt fram lib, popramenotion of l. 1"} poems or stories, libraries must (pase one-at-time reprinting of his work. To only mtional walutinis tot profil hr hu Sibylutowashahle li****!* arrangements which would provide anteriration fout libraries to copy, and probe vide rraralle esimenatlon for anthor amit paralele
In the ligtit of ripirricht history, it wond he putee to renme that 19**** ran te winporntie libmrrrrrwrnetist man pose fr o ntestantial area Starting with the phonograph terl. pierre" pr*** of minin
en grund with the same "it's not a threattitate the library s pa en 191 expresset trurd systemintir annat a time tyrintie ladt an honetan efte! of r elation four of their work in prehran pof*11* motorina
* rkt war erhacks, few vald trular runt any riable Insulat full ther writir.
It shetald westphasired that p er present , our article is not "etek Ine" or solutitute for
ir livett! fer l es ha estainly of artirip fry litir or pilihan the
one hunduritian net***** Ne A lrint reprints of printertarirlenr att
ta pagulat *** Inwt auther for ar Art;117 het n84***] ** glo ni e druges of #stre" would take to that teh he hand Earth of a s money to princit could unere reduce the rules thetsrl . Stany ratronize libraries that de
an author or pullar!
Hare the futurnala. The coples are reproduced for them in libraries dozens or
eta Inds of miles away. And where the tiver's library subscribes to the journal. '*! pre dorp and give him a reprint of the article he wants, rather than lend 11 inal entluit it un tilats journal itself available to riprocne copies of 1**' for other patrons, and avoid losing thin rrprint master through wear and tvar a umer Degligence or theft.
Vr DANIELUX. Mr. Lieb, counsel for the Issociation of American Pinkers
TISTIMONY OF CHARLES H. LIEB, COUNSEL FOR THE ASSOCIATION
OF AMERICAN PUBLISHERS Mr. Lirs. I would lihe to preface the reading of excerpts from my Pretent to rrinath that, juising from the testimony this morning 1:-*1] our friends frpresenting the libraries, I think that today, sadli. **** a no further from a resonable compromise on the photocopying 1:1, then we have been furthelint for 3 years
I lav, for the first time in recent years the libraries say that they fost app ihe provision against multiple copring, a section with which
11 nin airport w724* it apared in the 1989 Senate bill. T.,lav, #lun, for the first time they say they want the elimination of te :bition against reproduction of audiovisual, musical, and other Ivirale.
Solarly, for the first time in rivent prary this kind of herilline famion is tahen not by wine but lov all the libraries, and that is a .""*** 18.not rotiproming peption.
I ly av to lay in annars to the question that was awheel them sortamam toile publieber, that they don't think the publishers
11997. The piuthar, of coure, have no way of knowing * .40 h !.'ary opt in lv.ng done, but their own operating Pot tell thrm tha olie.r *** it ar not what the e xtedi.
1. fr. 1. (nors from Ilirinn Inversity, Troll wala of Dr I, Virnar, obertes well, -ubmitted on February 2008
eller formatt poep." (1 . tot! !onal (BNP, on on 1. P re and Informations le pl: *, & mort entitled Foments of Ti tan krur lur...* W:ah had this to say, at page 103
tarilor roll i hateveople los Interiorare lans niele Another dimension to '
' ; ! 11:1) de pyetli tari 1993, arr fort but want are " ! Det retrtable 11. 11.. rt11nt!) trend date on this p ar tout "!... ! 18 ) mare T ir algother from the 1'* runt en R ay"," of", "$ 119:rat's as reair in the 1971 data !
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Speyifically, my greatest concern is with the language of Section 1989:12 HR *3. This Section prohibits “.. systematic reproduction or distrik : 0 of single or multiple copies or phonorecords of material ..." by libraries. 107 appears to appropriately define "fair use", an historical privilege of librarie, and then effectively snatches it a way under 108 ig) (2).
Of articular concern is the fact that systematic reproduction is not dead and in, therefore, dangerously ambiguous, but if retained in the Bill yd le interpreted to effectively discontinue the traditional right of libraries of tak.** 3 single copy of a copyrighted journal for a single user, even when the butter of users and the volume of single copies is substantial. Again, I cannot beliete that the Congress wishes to deny, under the new copyright rerision, this is forically proper access to library resources.
On ball of the Wisconsin Interlibrary Loan Service, Its member libraries and, most importantly, its patrons, I urge the Subcommittee to delete Ser? 1041812) from the Bill. As the Director of the WILS Network, which series 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 aw 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 to important to note, also, that the National Commission on Libraries and Informats Science, in its final draft issued on March 10, 1975, restates its philosophy ar greater, not lees, access to library and information resources by all the di&is of the t'nited States.
I have witnessed your concern for the citizens of Wisconsin and the nati.the and the coniurn of the other respected members of the Subcominittee for their ( stituencies. Because of your collective past commitments, I reperitus request that you give serious consideration to the deletion of Section 10818)12) when you report HR 2223 out of committee.
Mr. DANIELSOx. First of all, I will call Mr. Irwin Karr. w in counsel for the Authors League of America, Inc. You gentlement mahe pour les comfortable, and ladies. I note you are all here torther, which is fine.
Chuir little scheinle calls for Mr. Karp first, then Mr. Lieb, Dr. (sillis, and Mr. Iloopes. Mr. Karp, it's yours for 7 minutes.