taxes, borrow money, raise armies and regulate commerce. Obviously Sec. 8 intended that Congress would enact copyright laws as well as exercise these other vital 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 hardly 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 at 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 the author's claim to adequate copyright protection rests on "natural, moral right". The common law recognized that right, holding that an author "has an absolute property right in his production which he could not be deprived of so long as it remained unpublished, nor could he be compelled to publish it." (Ferris v. Frohman). And as the Register noted, these exclusive common law rights "continue with no limit even though the work is used commercially and widely disseminated."

Library and Ad Hoc Committee spokesmen have not asked Congress to grant them 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 something that apparently wins their respect. But the copyright owner's right to compensation for systematic library reproduction stands on equally firm moral and legal footing. And his contribution to the libraries' copying operations is indispensable. Unless the American Chemical Society and other publishers can afford to continue producing their journals, the Xerox machines and libraries will not have 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 Copyright system. Motion pictures, radio, long-playing records, television, and the inexpensive mass-market paperback book all produced enormous transformations in disseminating copyrighted works. Some new media destroyed prior ones. Others, such as the mass-market paperback, reached millions who do not use its stillsurviving 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 compensation when their works are reproduced or disseminated in these recently arrived media.

Moreover, the concept of copyright has enabled authors and publishers, and users, 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

Uncompensated systematic library reproduction would also damage authors of poetry, 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 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 manner. 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 fee 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 from 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. Testifying before the Senate Subcommittee, John Dos Passos noted that a considerable part of his income from writing, in recent years, consisted of royalties from licenses 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 publishers 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 borks 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 political science can replace several copies of an anthology or book in the library or seve 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, ense tomized anthology, textbook, etc. Unless authors are compensated for uses of their 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 svg. 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 tremendously 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 exemption for systematic library reproduction could not draw a line-specifying that if an author or publisher suffered a prescribed degree of injury from library reproduction of his articles, 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 licensing 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 taking" or a substitute for copying by individual readers. Persons who obtain copies of articles from a library or publisher are not receiving handwritten notesthey are acquiring reprints of printed articles or other works, several pages long— just as they buy or acquire 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

have 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.

Mr 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 by 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 Universitv, from which my 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 by 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 available. Data on this score disappear altogether from the 1969 report on library statistics of colleges and universities, and reappear in the 1971 data only hy number of participating institutions, without transaction volume being given.

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 Copyright Revision Bill."

The position of the Publishers Association in brief is that we support the provisions of section 107 of H.R. 2223 with respect 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

Specifically, my greatest concern is with the language of Section 108(g) (2) ef 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 im portant 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. Unlike the bbrarians I am not ore to say that publishers are my best friends because I represent professional authors, and publishers are not our best frends: and that's true of librarians, too.

I wou'd like to introduce Dr. Robert Cairns on my right -execu the date tor of the American Chemical Society. On my left. Mr. Charles Lich, counsel, and Mr Townsend Hoopes, president of the Aneaton of Amser an Pulchers, They will discuss the issue of Weary phot iVeg in relation to sections 107 an 118 of the bill. Lete set, if I may, the stage for tier discussions. The Xerox and other retrographie machines have established a new method of reprent pull in se met mes enlled “on demand publishing,” “oneat a face reptil "g," or "%" 2'e copy"g" Perhaps it's most starkly reles ted in the statement of t..e Special Libraries Association, which wants to morow the lorry conving exe: iption to cover the "reand “is publisher," at 1 they are correct in characterizing lilea es as s. . This is a new medium for disseminating articles, chapters from books, or entire works for individual users by reproduc

g a single reprint to fill each order, as it is received. One-at-a-time tag is well established, it has been used for several years by rit publishers such as University Microfilms to supply books, mals, articles, and doctoral theses to individual customers. Hore, for example, is a copy of a 429 page book, entitled Teaching Pemary Reading, produced on a Xerox Copy-flo machine by Univerty Microfilmis. The label reads, "Published on demand by UniverM. rofilms," and that means very simply that each time an -ras received for this book, one copy is reproduced separately on t machine to fill that order. I would like to leave a copy with the

Mr. DANIELSON. Without objection, we will accept it in our files, it will not be included in the record.

Mr. KARP. I understand that.

Mr. DANIELSON, We don't want to be violating any rules on printing Laghter.]

Mr. KARP. We are prepared to secure a license for you to use the la. Langster.]

Ta fart, that is one of the points, This book was produced under granted by the author and publisher. I know it becausa I ¡proved the license, which is on a simple form, for a client of mine late hr, dand wrote the Look, and a royalty is paid each time one y of that book is pro inced.

i e pro ess of one at a time reproduction also is used to reproduce articles; and here is, for example, a journal article that was led by the Xerox Corp., by permission of the copyright owner. ile to leave that, too, not to include in the record, but for y by the committee.

Mr. Dosierson. I want to point out. I do appreciate having the སྨན་རོས, so that we know what you are talking about.

Mr. K.P. And last, to complete the demon-trative evi-lence, this

wi, his q de leavy covers a listing of 1990 separate whch are placed on macro'lm by the Xerox Corp. under e from the copyright owner, w.tun the sy-teta of copyright, and af』t,,"" From those m; rot'ms are produced copies like this a' ng). We are not tam ng about the old f cloned 30 cents are photostat, as you pointed out in your question; we are talking te v technology, and methods of reproducing copyrighted matat are st;'l in var od tages of tenolog, al dey, loptaent.

I have one mory item, ti is as called a microfiche card. This is even reonh, that d, and at the same time more s mple to use, and much ty, t'_n_mcro' 'ta. From this I ttle card à library can repro of pages of an article in this form (indicating). I will for the committee's study as well.

of one at a time reproduction is en ploved by several sera of ad, la Merve as repunt centers for tia patrons of other ii as their ownu is Tacry have lwen Cafes which indyje present time. Anorri an Loraries may be foot gas trany to a year for this type of copying And we wond on cft bearing, in rat to you a competicum to date led to Lae spera - proposas of ation, which unfortunate y were not

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ana ivaire to re pond to as concretely as we would have