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The long range problems arising from the effects of this new technology on copy. right must first be identified by the Commission and then it should "make recommendations as to such changes in copyright law or procedures that may be necessary to assure for such purposes access to copyrighted works and to provide recognition of the rights of copyrighted owners" as it has been charged by the U.S. Congress to do.
Mr. Chairman, I appreciate the opportunity of appearing here to present the point of view of the American Association of Law Libraries.
STATEMENT OF WILLIAM M. Passano, CHAIRMAN OF THE BOARD,
WILLIAMS & WILKINS Co. I thoroughly enjoyed meeting with you on May 13, and I appreciate the oppor. tunity to review with you the subscription figures for the 27 Journals published by The Williams & Wilkins Company. You may recall that a compelling reason given by the four judges of the Court of Claims for finding library photocopying of our Journals to be "fair use" was that we had not convinced them that this practice was doing harm to the financial condition of the Journals. It is true that in 1973, when the Court of Claims decision was handed down, we had no statisti. cal proof of damage.
However, the figures now available, which compare 1973 with 1974 and which I showed you when I was in your office, do to my mind show that the library networks are, in fact, doing just what they were designed to do; namely, reducing the number of Journals which the libraries subscribe to, since the needs of library patrons can be served by obtaining photocopies of requested articles as interlibrary loans through the network systems.
You will notice that the individual subscriptions to the 27 Journals which we publish have increased nearly 17%, comparing 1974 with 1973. Foreign subscriptions of all kinds have increased approximately 13%. Furthermore, there has been a healthy increase in the number of hospital subscriptions, due primarily we believe to the ever-growing number of community hospitals. This record indi. cates that the Journals as a group are in demand as purveyors of scientific knowl. edge and are highly respected by the scientific community. Furthermore, we credit much of the increase to the effectiveness of the very substantial direct marketing efforts which we have made during the past year.
The record of individual and foreign subseriptions, however is in sharp con. trast with the institutional subscriptions which in the same period of time have fallen off by 3%. I think it is safe to say that this decrease in institutional sub. scriptions, at a time when individual and foreign subscriptions have substan. tially increased, is not due to lack of popularity on the part of the Journals in question, but is because of the ease with which interlibrary loans (photocopies) are obtained through membership in library network systems, and that these photocopies can and do replace the necessity for institutions subscribing to the Journals in question. Certainly The American Chemical Society subscription figures confirm this with even larger declines.
We do not quarrel with photocopying, nor do we object to the network systems. They are effective means of efficiently disseminating scientific knowledge. We do believe, however, that those who use the Journals by photocopying them should share in their support and not leave the entire burden on the shoulders of the subscribers, the authors and the advertisers, as is the case at present. It is for this reason that Section 108 (g) (2) of the proposed Copyright Bill ninst be retained if the scientific press is to remain viable and free from governinental subsidy and control.
It should be borne in mind that fully 65% of the cost of producing the typical scientific periodical is incurred before the first copy comes off the press. This means that only a comparatively small erosion of the subscription list can greatly affect the unit cost and therefore jeopardize the financial security of the Journal
Again, many thanks for permitting me as a member of the Proprietary Rights Committee of the Information Association to place these facts before you.
STATUS OF SUBSCRIBERS TO 27 WILLIAMS & WILKINS JOURNALS COMPARING 1973 WITH 1974
STATEMENT OF Hox. DAVID MATHEWS, SECRETARY, DEPARTMENT OF Health,
EDUCATION, AND WELFARE There is now pending before your Committee H.R. 2223, a bill “For the general revision of the Copyright Law, title 17 of the United States Code, and for other purposes."
In brief, the bill as presently worded contains a provision (Subsection 1081g) ) which would severely hamper the flow of biomedical information between the National Library of Medicine and the nation's medical libraries and thereby reduce the information available to researchers and practitioners. Deletion of Subsection 108 (8) would remove this restriction. However, if deletion of this Subsection is not possible modification of the language contained therein would accomplish the same goal.
We transmit herewith a brief technical report which contains an analysis of select provisions of the bill under consideration and the effects which they might have on the programs of the National Library of Medicine, a bureau of the Department of Health, Education and Welfare.
We are advised by the Office of Management and Budget that there is no objection to the presentation of this legislative proposal from the standpoint of the Administration's program: AN ANALYSIS OF THE POSSIBLE EFFECTS OF SECTION 108 of H.R. 2223, GENERAL
REVISION OF THE COPYRIGHT LAW House of Representatives bill, H.R. 2223 “For the general revision of the Copyright Law, title 17 of the United States Code, and for other purposes," Duw pending before the Committee on The Judiciary in the House of Representatives, would provide for the first general revision of the copyright law since its passage in 1909. Section 108, "Limitations on exclusive rights : Reproduction by libraries and archives" provides that it is not an infringement of copyright for a library or archives to reproduce no more than one copy of a work for non-commercial purposes in order to preserve deteriorating materials, replace a da maged or lost copy that can not be purchased at a fair price, or provide a copy for the use of an individual library patron for scholarship and research. However, Subsection 108 (g) prohibits "the related or concerted reproduction or distribution of multiple copies or phonorecords of the same material, whether made on one occasion or over a period of time' whether intended for the use of one individual or a group. It also prohibits “the systematic reproduction or distribution of single or multiple copies” of a copyrighted work.
Subsection 108 (g) in its present form, depending on the interpretation of "yystematic reproduction," could possibly make operation of the current interlibrary loan program of the National Library of Medicine and its Regional Medical Library network an infringement of copyright, thereby seriously impairing the nation's health research and scholarship.
The NLM is a "library's library" serving as the back-up source of materials requested by patrons of local medical libraries but which are at that time absent from their collections. There are many reasons for the non-availability of literature which necessitates that a local library request an interlibrary loan; among the common reasons are that the material requested are out of the local library on loan or at the bindery.
To provide more rapid dissemination of biomedical information, the Library has developed a network arrangement through which biomedical literature
can be shared more efficiently by medical libraries throughout the nation. Eleven major institutions have been designated Regional Medical Libraries to provide interlibrary loan services to other libraries in their regions.
The interlibrary loan program provides to requestors photocopies of articles from periodicals and brief excerpts from monographs for the purposes of private study, scholarship and research. Single photocopies are provided in lieu of loaning the original literature as a means of safeguarding NLM's archival collection and of assuring uninterrupted availability of the literature of YLJI and the resource libraries of the Regional Medical Library network.
The term "systematic reproduction" as used in Section 108 (g) (2) is not defined in the bill, but if it is to be used to describe that reproduction carried out in connection with interlibrary cooperation, such as in the Biomedical Library Network, it will mean the end of this orderly and efficient medical literature exchange.
Section 108 in H.R. 2223 is identical to Section 108 of S. 1361 which was passed by the Senate in 1974. It is important to note that the Senate report which accoinpanied S. 1361 dealt with this issue of systematic reproduction.
The report indicated that Subsection (g) (2) stipulates that Section 108 does not authorize the systematic reproduction or distribution of copies of articles in periodicals or of small parts of other copyrighted works whether or not multiple copies are reproduced or distributed. Systematic reproduction or distri. bution occurs when a library makes copies of such materials available to other libraries or to groups of users under formal or informal arrangements whose purpose or effect is to have the reproducing library serve as their source of such material. The report states that such systematic reproduction and distribution enable the receiving libraries or users to substitute the copies reproduced by the source library for subscriptions or reprints or other copies which they might otherwise have purchased for themselves, from the publisher or the licensed reproducing agencies.
The potential effects of Section 108 (8) are unsure ; however, as the Senate Subcommittee interpreted "systematic reproduction” in 1974, NLM's present interlibrary loan program might be found to be an infringement of the copyright law if amended as proposed in this legislation.
Although Section 108 (a )--(f) appears to allow for the photocopying of journal articles, Subsection 108(g) (2) threatens to destroy the effectiveness of the biomedical library network and to seriously undermine the ability of local medical libraries to provide medical literature and information requested and needed by the health community. It could in effect eliminate the present practice of interlibrary loans which would seriously impair the dissemination of medical information throughout the nation.
Deletion of Subsection 108 (g) (2) would permit the continuation of an unrestricted flow of medical information among libraries. If deletion is not possible, another approach which might accomplish the goal would be to amend Subsection 108(g) (2) by adding the language underlined below :
(2) engages in the systematic and unlimited reproduction or distribution of single or multiple copies or phonorecords of the same material described in Subsection (d) 80 as to substantially impair the market for, or
value of, the copyrighted work. For purposes of avoiding ambiguity the bill should include explicit definitions of "systematic reproduction" and "fair use."
STATEMENT OF KEVIN J. KEANEY, GENERAL COUNSEL FOR THE FEDERAL LIBRARIANS
AssociaTION The Federal Librarians Association, incorporated in the District of Columbia, is an organization of professional librarians who work in the libraries and documentation centers of the U.S. Government throughout the world. This statement is submitted to express the view of the association relative to the proposed copyright legislation, particularly Section 108 (g) (2).
Section 108 perinits the reproduction of single copies of certain materials, in certain circumstances, and under certain conditions, by libraries and archives; but paragraph (g)(2) withholds that permission or right in ". . . cases where the library or archives, or its employee : ... engages in the systematic reproduction or distribution of single or multiple copies of phonorecords of materials described in subsection (d)."
It is the view of this association that this paragraph will, on the one hand, subject the library and the librarian to a liability so serious as to inhibit the
primary purpose of Article 1, Section 8, of the U.S. Constitution, and on the other hand, provoke by the vagueness of the term "systematic" endless and uuritable litigation.
Federal librarians and Federal libraries have the duty to serve the public br providing whatever documents are available. We contend that the public interest is best served when the documents are provided subject to the primary mrpose of the constitutional provision ("... to promote the progress of Science and the useful Arts...") and subject to no more than other parts of Sections 107 and 108. We believe that the "fair use" provisions of Section 107 are xiffcient protection to the holder of copyright, buttressed by the more specific provisions of Section 108, but excluding pa ragraph (g)(2). Librarians do not believe that the public interest is served by unrestricted and unconditional photoapsing, but we do believe that the restrictions and conditions contained in other parts of the legislation are sufficient to safeguard the legitimate rights of the holder of copyright. When Congress provided that constitutional protection to holders, we believe Congress intended a "quid pro quo”, viz. the fair use of that protected material by the public. We are highly concerned that there seems to le no government defender of that public interest. On the contrary, the National Commission on Libraries and Information Science latest report indicarpe to us an acceptance of the inevitability of royalties or a licensing agree. ment. It is no comfort to us that the Register of Copyrights, and the former Register, testified last week before this subcommittee that their first concern is for the "beneficiaries" of the Copyright Office, i.e. authors and publishers. And We are certainly not prepared to agree with the Register that the authors' interest is necessarily the public interest.
Our apprehension about the vagueness of the term "systematic" is confirmed by the report on S. 1361 (no. 93-983) which said “... neither a statute nor lezielative history can specify precisely which library photocopying practices constitute the making of 'single copies' as distinguished from "systematic reproduction'". The report's recommendation that meetings of opposing parties be heid to resolve the conflict reminds us that these meetings have already been helil many times, without success.
But surely, one asks, "systematic" is a term on which reasonable men can reach an understanding? Aside from the fact that one man's reason is another's Intransigence, there is the fact that economics is at the root of the matter. Holders of copyright understandably want more money, and libraries are faced with rising costs in serving the public. The economic damage to holders of copyright is at best speculative, in regard to photocopying, and we share the view of the 18. Court of Claims that, in regard to medical journals at least, the argument is an “untested hypothesis”.!
Every organization, and hopefully, every library, tries to operate in a “systematie" manner, i.e. according to standard operating principles or uniform principles for each task, and must operate thus out of sheer common sense and business necessity. When your office rents and uses a photocopy machine, you are suburribing to a "system": even the production of single copies, no less multiple copies, are part of a "system". In this respect, all library photo(pying is "sys. tematic" and thus subject to the rest rictions of paragraph (g) (2).
As members of a profession, and employees of government ngencies, devoted to public service and the public interest, we ask you to strike from this proposed legislation paragraph (g) (2) of Section 108, on grounds that this paragraph :
(a) contains a term so vague as lead to fruitless litigation,
th) is against the public interest and the primary purpose of Article I, Section 8, of the U.S. Constitution, and
(e) is superfluous in the light of the remaining parts of Sections 107 and 104.
STATEMENT OF John B. HIGHTOWER, CHAIRMAN. ADVOCATES FOR THE ARTS/
ASSOCIATED COUNCILS OF THE ARTS Mr. (hairman and members of the Committee: I am presenting this statement on behalf of Advocates for the Arts, a program of Associated Councils of the Arts, Inc. (ACA). ACA is a national service membership organization of state and community arts agencies devoted to the protection and advancement of the arts and artists. It represents several hundred widely diverse organizations, ranging from The Metropolitan Opera, to the Alaska State Council on the Arts,
> Ander. Special Library Sketchbook. S. L. A., N.Y. 1972. 43 p.
to the Fine Arts Council of Florida, to the Siouxland Arts Council of Sioux City, Iowa. Through Advocates for the Arts, ACA is concerned with all of the problems that affect artists, art institutions, and the general public's enjoyment of artistic and cultural works.
ACA acts as a service agency for its members, providing information and assistance to arts councils and arts organizations throughout the United States, ACA member organizations reflect all artistic disciplines and ACA speaks for the management and financial sides of the art world, as well as the creative and innovative artists themselves. Finally, ACA's Advocates program speaks for the arts consumers—those who enjoy art, buy art, view art, and attend the performing arts-in short all who are concerned and affected by the cultural environment of this country.
Advocates for the Arts, through factual and legal research, identifies areas in which action might have a material impact on the rights of arts institutions and individual artists, and areas in which public action might contribute to the enhancement of the cultural life of the community. Advocates intends to act with respect to these areas through public education, drafting of model legislation and litigation. Advocates seeks to accomplish the sharpening of public consciousness of the way in which law affects our cultural life and determines the aesthetic character of our surroundings.
Advocates have identified several areas of immediate concern. One of these areas relates to the economic rights of the creative artists. My statement to you today urges this Committee to take full cognizance of the significant adverse impact on the arts which would result from copyright legislation which fails to place reasonable restrictions on the permissible scope of photocopying copyright material.
The recent conclusion of the United States Supreme Court case of Williams and Wilkins Company vs. The United States where the Supreme Court by a four to four deadlock let stand a lower court decision permitting rather wide spread photocopying of copyright works, makes more immediate the need for reasonable controls. Unfortunately, judging from the commentaries following the United States Supreme Court decision, institutions feel they have an expanding license to make widespread photocopy use of copyright works. While we do not believe such license was necessarily created by the recent court decision, it being limited to the specific facts presented, the climate is such that action by this Committee is urgent and necessary.
We are concerned about the formulation of legislation which would formalize the concept of "fair use" so as to encourage wholesale library reproduction and distribution of copyrighted works.
Those who create artistic works are necessarily threatened. Without copyright protection against unauthorized distribution of photocopies of their created works, creative artists can have no assurance of being paid for their efforts.
The language of HR 2223 (and S. 22 in the Senate) governing the "fair use" of copyrighted material, if adopted, would be a major step toward the economic protection for originators and creators of work from excessive reproduction. We heartily endorse the provisions of Section 108 and urge its adoption by the 91th Congress. Any attempt to erode or undermine the limitations on "systematic reproduction" of copyrighted works, will, in our opinion, greatly reduce the effer tiveness of the entire bill. We join the Authors League, and other interested parties, in urging the committee to resist any efforts to delete Section 108 (g) from HR 2223.
Unfortunately, the potential for harm to the creative artist from an overly liberal photocopying provision is very real. Under the law as developed by the Williams and Wilkins case, it appears that complete articles may be photocopied from a magazine and distributed on a widespread basis without any royalty pay. ment to the copyright owner. However, without specific limitations, we are fear. ful that institutions will conclude if an article from a scientific journal can be reproduced and distributed, why cannot a short story or a poem from a literary magazine also be reproduced and distributed? Why not a musical composition from a workbook of musical scores? Indeed, why not a photographic magazine or a magazine anthology of art reproductions or lithographs? Why should the copier be limited to magazines? Why should it not be permitted to reproduce the same poem, short story, musical composition, photograph, drawing, or lithograph from a paperback book or a hardcover book? Further, in the mind of the photocopier, it might seem to be of no significance that the literary or artistic work is extracted