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is inadequate funding at most stages of the communication process (including libraries).

The Society has repeatedly and clearly stated its need for copyright protection against continuation and growth of "uncontrolled dissemination of scien. tific information"—the unauthorized regular or systematic or concerted singlecopy republishing of Society papers by libraries or networks of libraries. The Society is opposed to copyright-law revisions relating to "copying that would destroy the copyright protection for its publication programs.

Until communication issues can be further clarified, the Society would prefer that "fair use" remain a judicial rather than a legislative concept. The Society is specifically opposed to any detinition of "fair use" that could be further interpreted as permitting unauthorized, concerted "single copying"' (photocopying, electronic copying, etc.).

The Society recognizes the need to develop total systems for information transfer: therefore, it specifically opposes any broadening or interpretation of the definition of or the right to prepare a "derivative work” that would reserve to "authors" (primary publications) the right to control the writing of original informative abstracts that are not complete "abridgments" or "condensations." However, the latter are accepted as being fully protected derivative works ; they are of significance to the Society's future primary publication of "short papers."

The Society advocates immediate copyright-law revisions that will more completely and explicitly define and continue to protect such technological develop ments as computerized information bases, computerized data bases, computer programs, and microformis, i.e., that will define and specify these as "Exclusive Rights in Copyrighted Works." Because the scope and importance of these technological developments are already extensive, the Society no longer advocates deferring related copyright-law revisions until after the studies and recommendations of the National Commission on Yew Technological Uses of Copyrighted Works. In particular, the Society firmly advocates revisions which clarify and continue the protection of copyrighted computer bases at time of input, on the hasis that copyright control at output only might be limited severely by broad interpretations of "fair use."

The Society opposes most of the specific additional limitations on the exclue sive rights of authors and their publishers to provide copies of copyrighted pul lications that are contained in recent legislative bills. As proposed, these limita. tions do not really meet the needs of “users" and libraries for uncomplicated copying.

The Society recognizes that these and other limitations on exclusive rights to provide copies are based on the very real desire of "users," and libraries in their behalf, to avail themselves of such "new technology" as photocopying to prepare or obtain copies of copyrighted documents quickly and easily. The Society has repeatedly declared its readiness to cooperate in the development of a Clearinghouse that can grant such permissions in an equitable and simple manner and is presently working actively toward this goal through the Conference on the Resolution of Copyright Issues under the chairmanship of Barbara Ringer, Register of ('opyrights, and Fred Burkhardt, Chairman of the National ('ommission on Libraries and Information Science. The Society also advomates the development of "document-access networks" that will quickly supply actual (oping in an equitable manner. The Society therefore advocates copyright law provisions that will equitably authorize and regulate such important services to "users."

Despite reservations on some segments of this will, the American Chemical Society recommends passage of the sections of II.R. 2223 related to the library photocopying. This recommendation is made with the belief, based on work with the Conference on the Resolution of Copyright Issues, that a practicable system for licensing and fee collection for photocopies of copyrighted works can be de. veloped which will render fair and equitable charges for systematic photoconsing in the interest of an improved and economically viable system for the dissemination of scientific information. Plans now are being developed for testing such a mechanism.

Mr. DANIELSON. I believe the next gentleman is Mr. Hoopes, president of the Association of American Publishers.

TESTIMONY OF TOWNSEND HOOPES, PRESIDENT, ASSOCIATION OF

AMERICAN PUBLISHERS

Mr. Hoopes. Thank you, Mr. Chairman. I am the president of an association of 265 members who are responsible for the publication of perhaps 85 percent of all the books published in this country.

On behalf of our association and speaking to some extent for the other copyright owners, my purpose is to reinforce support for the present sections 107 and 108, which Jr. Lieb has addressed in some detail. Mainly I will summarize our recent experience with the library community in seeking to be responsive to pointed suggestions from both the House and Senate Judiciary Committees.

The Senate report accompanying S. 1361, which passed the Senate last September, expressed the belief that section 108 provides "an appropriate balancing of the rights of creators and the needs of users." At the same time, recognizing the complexities, the report urged the parties--in this instance authors, publishers, and librarians--to meet together directly in order to develop more precise photocopying guidelines for fair use; and also to develop workable clearance and license arrangements for copying beyond fair use.

This urging by the Senate committee repeatedl a similar proposal by the Ilouse Judiciary Committee in 1967. Responsive to that earlier proposal, publishers and authors met with librarians in 1972 and again in 1973 for discussions that became known, somewhat grandiloquently, as the "C'osmos Club and Dumbarton Oaks talks."

The formula evolved at the Cosmos Club was that, if reprints of journal articles were readily available from the publisher or his agent, Then the library would refrain froin photocopying of its own. The formula evolved at Dunbarton Oaks was that a journal publisher would encode the front page of each journal article with a serial number and a reprint price, and that a library making a copy thereof would so advise a clearinghouse operated by the publisher. At quarterly, or semi-annual intervals the clearinghouse would bill the library for the aggregate royalty charges, and would then distribute the proceeds to individual publishers. While both the ('osmos and Dumbarton efforts were deemed feasible by the library participants, they were later both

shot down by officials of the various associations, . Since November, 1977, publishers have again been negotiating with

the librarians under the joint sponsorship of the Register of Copyrights and the Chairman of the National Commission on Libraries and Information Science. Eight meetings of a 12-man working group were held between early December 1974 and mid-April of this year.

I regret to say, Mr. Chairman, that there has not been much progress to date, chiefly because the librarians have refused to accept cither the Senate bill, or the guidances suggested by the Library ('ommission chairman and Miss Ringer, as in any way a limiting frame of reference. We have asked them, for example, to join with us in defining typical situations of two kinds: (a) Those which would clearly involve fair use copying, and (b) those which would clearly in volve systematic copying beyond fair use, thereby requiring permission and royalty payment.

Their consistent reply has been that they know of no copying done by libraries which extends beyond fair use. Mr. Low in his statement

this morning complained about the practical difficulties of distinguishing single copying from systematic copying, but it is a matter of record that his group has refused even to discuss guillelines designed to establish just such practical distinctions.

Having thus failed to come to grips with the substantive issue here involved, the two sides have recently agreed to conduct a survey of actual photocopying practices in libraries, and a test of a payments mechanism modeled along the lines of the Dumbarton Oaks proposal. But the library community has made clear that its participation in this exercise in no way implies an obligation to pay royalties under any circumstances.

I suggest, Mr. Chairman, two possible explanations for this unforthcoming attitude. Either the library community as a whole is still attempting to secure total exemption from copyrights and experts to get its way with the Congress; or the attitude here expressed reflects a minority view of the library community and is not, therefore, representative of the whole. In this latter connection, I must say that we are struck by the difference in the attitude we have found among local librarians, and those expressed by the official spokesman of the library associations in Washington. In the field, we have encountered widespread sympathy for and understanding of the basic concept of copyright, and of the need for copyright protection, accompanied by a felt need for guidelines that will more precisely determine the dividing line between fair use and infringement.

I would like to make brief mention in this same context of the ('ommission on New Technological Uses of ('opyrighted Works which was established by law on December 31, 1974. Our association has supported and does support this commission. But we believe it would be a serious mistake if Congress should seek to avoid coming to its own finite conclusions on key copyright issues on the grounds that such questions ought logically to be referred to the new commission. In our judgment such a course would represent a serious abdication of congressional responsibility, and would increase rather than decrease the ensuing confusion. In a true sense it would merely shift the debate to another forum, and one not nearly so well placed as the Congress for bringing the controversial questions to clear resolution.

In the nature of things, Mr. Chairman, the ramifications of the copr. right issue in the context of rapid technological change will assure that the new commission has a great many questions to debate and resolve. But the commission's work will proceed on a far more hopeful basis if the Congress accepts its own responsibility for setting workable muidelines in the new law. In our judgment congressjonal endorsement of the existing language of sections 107 and 108 would constitute the necessary guidelines for print media.

Thank you, Mr. Chairman.
[The prepared statement of Mr. Hoopes follows:]

STATEMENT OF TOWNSEND HOOPES, PRESIDENT, THE ASSOCIATION OF AMERICAN

PUBLISITERS

Mr. Chairman. My name is Townsend Hoopes. I am President of the Association of American Publishers, the extent and influence of whose membership Mr. Lieb has described. I should add parenthetically that, in addition to representing publishers, I have written two books and intend to write more, so that my convictions about the need for copyright protection are based on authorship as well as publishing. I agree with Ms. Ringer that protection of authors' rights is at the

very core of the Constitutional provision for copyright protection, and that the ned for nucb protection is a direct consequence of the need to assure continuare of intellectual creativity, a function which cannot be performed by a committee but only by an individual.

On behalf of the Association, and also speaking to some extent for the other proprietary owners here assembled, my purpose is to reinforce support for the present language of Sections 107 and 108 of H.R. 2223, which Jr. Lieb has addressed in some detail. Mainly I will summarize our recent experience with the library community in seeking to be responsive to pointed suggestions from both the Ilonse and Senate Judiciary Committees.

The Senate report accompanying S. 1361 expressed the belief that Section 108 provides an appropriate balancing of the rights of creators and the needs of Uspre"; at the same time, recognizing the complexities, the report urged the parties- in this instance authors, publishers and librarians- to meet together directly in order to develop more precise photocopying guidelines for "fair use". and also to develop workable clearance and license arrangements for copying ****und fair use. This urging by the Senate Committee repeated a similar proposal by the Ilouse Judiciary Committee in 1967. Responsive to that earlier proposal, publishers and authors met with librarians in 1972 and again in 1973 for discussions that became known, somewhat grandiloquently, as the Cosinos Club and Dumbarton Oaks talks. The formula evolved at the Cosmos Club was that, if re. prints of a journal article were readily available from the publisher or his agent, the library would refrain from photocopying of its own. The formula evolved at Dumbarton Ouk - Was that a journal publisher would encode the front page of earn journal article with a serial number and a reprint price, and that a library making ampy thereof would so advise a clearinghouse operated by the publishers. At quarterly or semiannual intervals, the clearinghouse would bill the library for the aggregate royalty charges and would then distribute the proceeds to individual publishers. While both the Cosmos and Dumbarton efforts were deemed feasible by the library participants, they were later both shot down by officials of the severai library associations.

Since November 1974, the publishers have again been negotiating with the librarians under the joint sponsorship of the Register of ('opyrights and the chairman of the National Commission on Libraries and Information Science. Eight ineetings of a twelve-man working group were held between early Decembor 1974 and mid-April of this year. I regret to say, Mr. Chairman, that there has not been much progress to date, chiefly because the librarians have refused to n«rept either the Senate bill or the guidances suggested by NCLIS and JIS. Ringer as in any way a limiting frame of reference. We have asked them, for example, to join with us in defining typical situations of two kinds: (a) those that would clearly involve fair use copying, and (b) those that would clearly involve systematic copying beyond fair use thereby requiring permission and royalty payment. Their consistent reply has been that they know of no copying done by libraries which extends beyond fair use.

I suggest. Mr. Chairman, there are two possible explanations for this inforthcoming attitude. Either the library community as a whole is still attempting to secure total exemption from copyright, and expects to get its way with the Concrpas: or the attitude here expressed reflects a minority view within the library community and is not therefore representative of the whole. In this latter

nnection, I must say that we are struck by the difference in the attitudes we have found among local librarians and those expressed by the official spokesmen of library associations in Washington. In the field, we have encountered wide. sprend sympathy for and understanding of the basic concept of copyright an'l of the need for copyright protection, accompanied by a felt need for guidelines that will more precisely determine the dividing line between fair use and infring phone ment.

I would like to make brief mention in this same context of the Commission on New Technological Uses of Copyrighted Works which was established by law on December 31, 1974. Our Association has supported and does support this ('ommission, but we believe it would be a serious mistake if the Congress should spek to avoid coming to its own finite conclusions on key copyright issues, on the ground that such questions could logically be deferred for consideration by the new Commission. In our judgment, such a course would represent a serious abdication of Congressional responsibility, and would increase rather than decrease the ensuing confusion. In a true sense, it would merely shift the debate

to another forum and one not so well placed as the Congress for bringing the controversial questions to clear resolution,

In the nature of things, the ramifications of the copyright issue in the context of rapid technological change will assure that the new Commission has a great many questions to debate and resolve. But the Commission's work will proceed on a far more hopeful basis if the Congress accepts its own responsibility for setting workable guidelines in the new law. In our judgment, Congressional endorsement of the existing language of Sections 107 and 108 constitutes the necessary guidelines for the print media.

Mr. DANIELSON. You have some more time, if you like-Mr. Lieb has a comment to make.

Mr. LIEB. May I respond as one of the many lawyers who was involved in the wonderful case of Williams & Wilkins, in view of the questions that were raised this morning about it?

First of all, Mr. Pattison, although it is true that the Supreme Court decision said the judgment of the Court of Claims is aflirmed on a four to four vote, the established law is that such a decision by the Supreme Court lacks any precedential value whatsoever as far as the Supreme Court is concerned.

Second, I would like to point out to those who are not intimately familiar with the briefing in the case, that the Solicitor General in his brief to the Supreme Court defended the practices as shown by the record on appeal, and there was a very limited, narrow record of only -copying of eight articles of at most three times of one, the other twice of one.

The Solicitor General defended the practices that appeared in the record as not systematic and said in two places in his argument that had the case had before it facts involving a library consortium, such as was recently established by New York Public Library, and Harvard, and others; had it had before it a case of true systematic copying the argument would not be made.

So, the Williams & Wilkins decision, such as it is, resting on a four to three decision of the Court of Claims, is to be read most narrowly not only because of the narrow facts in the record, but because of the reservation and doubts of the Solicitor General with respect to the principle involverl.

Vr. DANIELSON. Thank you. Mr. Pattison? I think we can safely say we have about 10 minutes between us, you take the first 5.

Mr. PATTISox. I guess I'm just primarily concerned in terms of the mechanical problems once some satisfactory or otherwise agreement is worked out by Congress, and the mechanical problems of preclearance, what is an adegnate charge, how the proceeds are distributed, recordkeeping with all the varieties of libraries that we have_tiny ones and great big ones I would like to have some of your comments. I think Mr. Hoopes has been very helpful on that, but it seems to me some kind of agreement has to be worked out, some complicated mechanism undoubtedly will have to be worked out to resolve those questions.

Mr. Hoopes. If I may, Mr. Pattison, I would like to refer that question to one of the gentlemen who participated in the working group.

Vír. Karp. Mr. Pattison, may I start by pointing out, the papers that Dr. Kenyon submitted contain a description of a prototype, a prototype in which the mechanics are described. They start in part from the levice of a code printed on the first page of every article, indicating the price, the identification of the publisher, and so forth.

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