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periodicals, those that are purely scientific to those which are applied in the fields of engineering and related areas.
So this broadens the concept which Mrs. Linden gave you, in which the concern was principally with the textbook and the educational usage thereof.
It quickly became apparent to us, with the explosion of technical devices in the reproduction of materials, that although a problem did not necessarily exist at the time, at least in the legal sense, it is only a question of time before a most serious legal problem will arise as to what is fair use, how far it extends, and whether it should acquire some definition or preferably some solution which would avoid the rigidity of definitions.
So, quite early in our activities, we discussed the possible solutions to the problem of usage of copyrighted materials for one purpose or another. May I say there ar several
such materials can be used ? The obvious one is for profit. Of course, there are some copyrighted materials that are reproduced simply to save money, as in the case of schools where material is copied for use of students in classrooms, and which does save the purchase of textbooks or articles, maps, charts, and what not.
So saving and profit are in the same category, though there may be different motives in using one or the other.
Another way in which copyrighted materials are used is in my own field of science. I represent one field, geology, but I can speak both as an author and as a researcher. I can speak also as the former editor and publisher of two publications of the American Association for the Advancement of Science. One was a noncopyrighted weekly magazine, Science, the other was a copyrighted magazine, the Scientific Monthly, now discontinued.
I had no commercial interest whatever in these publications. But having published them does give me a breadth of experience in these matters which I think led to my election into this job, of president of the Committee To Investigate Copyright Problems.
As a scientist I can say that we use copyrighted material. We get copies of material for the advancement of science, our own particular interests in science to be sure, which at the same time, as a byproduct, promotes our reputations. In my own institution at the present time, the University of Pennsylvania, I find a fetish for publicaton. It means that, as chairman of the department of geology, I have to needle associates to keep busy and publish. And, of course, it means use of publications as a stepping stone to the advancement of their own particular fields.
Under these circumstances we felt that use for this nonmonetary purpose is just as important as use for profit, from the individual's point of view; and that, if the question of gain came up in discussing fair use, actually the scientist is using the material not merely as a reader. Our publications are for reading and we certainly encourage the widest possible reading, but most readers do not use the material in any particular monetary or reputational sense.
But then, when the materal is used other than for simple "reading! it occurs to me that I, as a scientist using my colleague's work, owe a debt; and this becomes all the more important because so many scientific publications are published not only at no profit but sometimes at a very serious monetary sacrifice.
Very few teachers in high schools or colleges can pay the full cost of the publications which they can profit by most. In most instances, the subscription prices to journals are relatively low. The journals are dependent upon outside income, such a taking in advertising, donations from commercial concerns, or advertisers and potential advertisers. In short, every device has been used, from the page charge to authors or to their sponsors, to advertising, in order to keep alive.
So our concern has been primarily with the job of keeping the creativity alive, and of course that is worthless unless it reaches an audience through publication.
We recognize that publication, as Mrs. Linden told you so vividly, has become far more than just the printed page. It has become the output of many very clever machines, ranging from computers to the Xerox which we use in our own department, and the question is, to what extent are these media being used for the reprinting or redistribution of copyright material ? It is our feeling that they could be used a great deal more than they
We had something to do with the inception of the Fry Associates study, and as Mrs. Linden pointed out, it was made in 1962 and a lot has happened since then in the explosion of reproduction devices.
We are convinced that the Fry study was grossly incorrect in one of its statements which I think I have before me. One of their statements claims that "there is no indication that the copyright law has served as a barrier to the dissemination of scientific and technical information.”
We contest this, because what we think Fry Associates did was to try to measure the flow of a faucet that was turned off. That is, the copyright law has slowed up a great many copying institutions, including public and university libraries, from copying material much more freely.
I can give you an instance. The Franklin Institute of Philadelphia arranged with a very large commercial research organization for the wire transmission of material from their very extensive and complete engineering and scientific library.
After the wire service was installed, they suddenly became worried about the copyright law and restricted the transmission of material to noncopyrighted works or old works in which the copyright had expired.
Here is an institution which would like instantaneous access to scientific and engineering materials in periodicals as well as in textbooks. It feels now that it must go through the delay of getting formal permission for the use of this material.
Where this kind of use is involved, we feel that to define fair use as being, shall we say, one to a customer, is really not fair at all because of the use to which the material may be put. "If the wire service concern transmits a single copy, the receiver can reproduce it at once on his own equipment, Xerox or otherwise, and distribute it to 50 people; that is, to the number of people engaged in the research for which this article would be pertinent.
For that reason, we came up with the thought-and I must say, some years before the witness this morning came up with it—of a clearinghouse for copyright material so that as many copies as are actually needed could be obtained for a reasonable fee. This idea has been under study by us for some years. We are now advanced to the point of designing the sampling system to be used by the clearinghouse. We are about to begin having a thorough study of this made by the Bureau of Social Science Research, to determine thereby a feasible method for dealing with the problem of use.
We are not committed to the idea. We want this dispassionate study made independently of our own organization before we reach any conclusion that this is the way of taxing the users via the reproducers, and transmitting the charge through, just as one finds the ASCAP organization doing in a somewhat similar situation. Through the electronic and other devices that are in use today, we find the department stores routing their billings to a concern that is well equipped to take care of the billings of many concerns, and we feel that the instrumentation is available for this kind of assaying.
But we are just at the brink of having this study made and of course we are awaiting its results before we reach any conclusions.
There is a great deal more to say but I promised to be short and these points, I think, were not covered this morning. However, I should be pleased to answer questions, and I know my two associates are smarter than I on some of these points, and would be glad to be questioned, too.
Mr. KASTENMEIER. Thank you, Professor Meyerhoff. Does your clearinghouse for copyright differ in any respect from Mrs. Linden's suggestion ?
Mr. MEYERHOFF. Rather substantially, because it would be a clearinghouse for scientific as well as educational publishers, and it would be a focal point to take care of the contracts. Mrs. Linden suggested there would be individual contracts between the schools and individual publishers.
We feel again that that is a rather circuitous route and we feel that the clearinghouse could acquire contracts with all publishers. After all, the number is quite finite and for that reason it would be much simpler to deal with the contractual relationship through that kind of organization than it would by individual publishers with individual school systems.
Mr. KASTENMEIER. Do you testify really as a copyright holder, as a copyright user, or both?
Mr. MEYERHOFF. Both.
Mr. KASTENMEIER. Do you feel that your self-interest lies in one field more than another, say as an author more than a user?
Mr. MEYERHOFF. As a user much more than as an author, because so far I could hardly claim that I got tobacco money out of my royalties.
Mr. KASTENMEIER. Without having read your statement, does your statement attempt to analyze the different interests that are involved in the copyright revision and to assess which positions are preferable?
Mr. MEYERHOFF. I have read the law which I received, thanks to Mr. Kaminstein, and perhaps I should not make this statement, but so far as our thoughts are concerned it would not make much difference whether it is revised or not.
We feel that the concept in the law of 1909 is thoroughly sound, it allows latitude; and where we are fearful is only in the construction that might be put upon it if there were legal suits brought in by someone who felt that his copyright had been infringed, as he well might because of the new copying devices that are available.
We do have a very small number of recommendations which to my mind would not materially affect the law as drafted.
I might read them. They are on page 18 of our testimony. The following recommendations are based on opinions as to future conditions, as contrasted with present conditions; i.e., on estimates of the probable evolution of copying and dissemination of copyrighted works within the next quarter century. The CICP recommends that:
1. The payment of moderate fees or royalties be recognized by the Congress as a budget cost in research, development, education, and other productive uses of copyrighted materials; this cost being recognized in order to maintain a free enterprise system in which the copyright principle has become essential to the advance of science and the arts.
2. In revising the copyright statute the Congress introduce no measure which would prolong or aggravate the present short-term technical and economic advantage (as described in the preceding statement) of the consumer of copyrighted works over the producer; we make the point we do because the new devices are so available; the consumer has very ready access to all of copyrighted materials and noncopyrighted materials, too, whereas the producer has less and less control over this access. That is the point that we emphasize herenor which might hinder the normal economic readjustment of this advantage that might be brought about, for example, by establishment of a more effective and rapid means for the consumer to obtain permission to make any number of copies of copyrighted works, and to make prompt payment for same.
3. As an alternative to legislation within the copyright statute to correct the economic advantage of the copyright consumer over the producer, the Congress consider chartering a nonprofit utility or semiprivate corporation, a copyright clearinghouse, to be operated jointly by representatives of both consumers and producers of copyrighted works for the purpose of enabling rapid, inexpensive, and convenient economic exchange of moderate fees or royalties for rights to copy or to make other uses of copyrighted materials.
In short we have suggested that the Government itself take the responsibility for the clearinghouse which we have conceived and which with appropriate support we would be more than happy to set up provided the study which we are about to have made proves that it is a feasible project.
Mr. KASTENMEIER. In No. 1, when you say the payment of moderate fees or royalties be recognized by the Congress and so forth, you mean in any enterprise ?
Mr. MEYERHOFF. Yes, sir; that is right. Right now in many situations the cost of publications is not recognized as part of a project.
I could name at least one Government agency which has been years behind in publication because of that very fact. That is the U.S. Geological Survey, if you must know.
Mr. KASTENMEIER. Does the U.S. Government use copyright materials?
Mr. MEYERHOFF. It does use them without payment. In fact, that is as it should be.
Mr. KASTENMEIER. You are not suggesting that the Government pay for copyrighted materials?
Mr. MEYERHOFF. No; but in the projects it supports it should make allowance for this kind of charge.
Mr. KASTEN MEIER. Mr. St. Onge.
Mr. MEYERHOFF. My two associates here were keenly interested. One, Mr. Sophar, at that time was connected with the Microcard Corp., and his concern was for the availability of material. Then Dr. Heilprin, who is the scientist for the Council on Library Resources, was deeply concerned with the library use and fair use of material and with research that was being undertaken by his organization or being sponsored by his organization.
I am afraid these two people coaxed me into this situation, but I came willingly because I had faced the problem in several other connections.
Mr. ST. ONGE. How long has your committee been in existence?
Mr. MEYERHOFF. The committee came into existence as an unincorporated body in 1958.
Mr. St. ONGE. Do you have a budget?
Mr. MEYERHOFF. No, sir. Practically all of it has been voluntary work. Dr. Heilprin and his organization has contributed a fund for specific purposes which is about used up. I think there is only about $120 left in it. However, we are now raising funds for the research project which the Bureau of Social Science Research will undertake and that is being raised through contributions from industries that are concerned, either publishers or the manufacturers of equipment and supplies.
Mr. St. Onge. Can you give us a date when you expect this study to be completed ?
Mr. MEYERHOFF. Mr. Sophar is our secretary and he has been dealing with this.
Mr. SOPHAR. I believe the first phase, phase 1, of the study possibly will be ready by the end of the summer.
Mr. MEYERHOFF. You might tell them what this includes.
Mr. HEILPRIN. Depending on our funds we can go faster or slower but in general I would like to say generally the first accurate and careful return will not be before about a year from July 15. We are going to start officially on that date, and it will take probably 3, 4, 5 months to gather the data and another 3 or 4 to analyze it and design a system for carefully distributing the royalties.
This seems to be the principal difficult point in the problem, how to design the sampling system so that no small publishers and copyright owners are omitted from a sampling. Sampling is the only way of dealing with this. We can't have a 1-to-1 correspondence between millions of 10 cent transactions and the copyright owners, so we must sample. It is the use of this sampling system, which must be done scientifically and fairly, that requires really technical study.
Mr. St. ONGE. So there is a possibility that this subcommittee would not have the results of your study?
Mr. HEILPRIN. I am putting it at a year simply to be on the safe side. We might be able to get going in 6 months, but I think that to make such a promise would be rather poor.
Mr. MEYERHOFF. We will be glad to relay to the committee the results as we get them. The final decisions, of course, will be based upon the completed study, but we will be very glad to keep you informed.