Mr. POFF. Before you begin, I have not had an opportunity to read your statement, and while I can't speak for my colleagues, I assume they have not had an opportunity, so I urge you to make all the substantive points you want to make in your summary in order that we will be able to frame our questions based on your verbal presentation.

Mr. LODWICK. Yes, sir.

Mr. ST. ONGE. You wouldn't object if we put your statement into the record at this point, would you?

Mr. LODWICK. We would be delighted.
Mr. ST. ONGE. It is so ordered.

(The statement is as follows:)

STATEMENT OF THE WILLIAMS & WILKINS Co.

Mr. Chairman, I am Lyle Lodwick, and I would like to introduce my colleague, Mr. Francis Old. I am director of marketing, and Mr. Old is editor in charge of rights and permissions, for the Williams & Wilkins Co., of Balitimore, Md. We are publishers and distributors of 45 monthly, bimonthly, or quarterly journals in the biomedical sciences. We also publish, each year, over 125 scientific textbooks, references, and monographs. An affiliated and jointly owned company, Waverly Press, Inc.-also in Baltimore-prints all Williams & Wilkins books and journals, and in addition prints over 100 scholarly, technical, and scientific journals (plus varying numbers of books) for scientific societies, universities, foundations, and commercial publishers. This year marks the 75th anniversary of our founding.

With over 700 employees, our companies are healthy, and they are growing along with science. Our combined sales last year hit close to $9 million, and our net profit on sales-after payment of corporate income taxes-was 6.6 percent.

Our publishing and printing of over 150 different journals and approximately 125 scientific books annually no doubt sounds like a tremendous outpouring of printed material each year. Actually it is a very small drop in the very large bucket of the multi-billion-dollar "copyright industry." Yet, because of its intimate connection with American science, and because of its function as a means of education and communication for American science, it has an important role in the future of America which is many times greater than its size.

As part of the "free press" of science, we are a typical member of a small and highly spcialized group of publishers who work in fields so limited in scope, so limited in audience, so limited in the number of potential purchasers of its products that any appreciable diminuation of that market-by uncontrolled copying-is a serious threat to our ability to publish for that audience.

Science publishing is a field where an important and successful journal may have 1,000 or fewer subscribers a field where 1,500 copies of a book can saturate the market.

While the future of our particular company is relatively unimportant in the overall picture of the American economy, we firmly believe that the future of free American science and independent scientific communication is a proper subject of inquiry for this subcommittee, insofar as that future is affected by copyright.

We are here to speak solely and specifically to the point of the possible effect, on American science publishing, of uncontrolled copying as proposed by a segment of those engaged in the fields of education and library service. Mr. Lee Deighton, on May 26, 1965, and Mrs. Bella L. Linden, on June 30, 1965, in behalf of the American Textbook Publishers Institute, have ably and thoroughly presented statements on copying and other copyright matters-and we agree with these statements in general and in detail.

It is our considered judgment that, if the copyright law of the United States should allow, in the name of education, library service, or any other similar public interest, a virtually uncontrolled free copying-even by scientists themselves of our specialized publications, the immediate or near-future effects will be these:

We will be unable to publish the quality and quantity of scientific information that scientists now demand of us.

Scientists will be forced to rely on progressively larger and larger grantsin-aid to have their information published.

Scientists will have fewer and fewer outlets for publication of their original papers.

Certainly many, and probably most, of the journals we now publish for scientific societies will eventually be forced to suspend publication as free and independent journals; and if they continue it will be as subsidized organs of some Government agency.

Carried from there, in logical sequence, to a not too distant future, there will be:

Direct governmental intervention in science publishing, with an authoritarian bureaucracy loosening or tightening the pursestrings and thereby deciding which scientific journals, even which scientific articles, are to be allowed to publish, and which must perish.

Perhaps it may come to this anyhow. Much of it is here already. The dramatic expansion of scientific activity already requires much in the way of governmental subsidy. So far, only a minute fragment of that subsidy is allotted to publication-and as long as there are free and independent scientific societies to sponsor and encourage research, and free and independent science publishers to publish the results of that research-just so long will there be that much less demand upon the public treasury.

We say this, because only the protection of copyright keeps our company and many of its customers in business.

Most of the organizations for whom we publish and print are independent, private, scientific societies, much of whose purpose and much of whose income comes from publication of one or more highly specialized scientific books and journals. Their activities are educational and nonprofit-and certainly in the public interest. Their mediums of education and communication are the scientific journals which they sponsor and own, and which we publish for them. Without a journal in which to record and transmit information, a scientific society would have little if any reason to continue in existence. There is no other medium in existence today (or predicted for the foreseeable future) which allows so many men to receive so much original information for so little money. If the protection of copyright is diminished, the scientific journal perishes, the scientific society ceases to flourish or even dies-and with it goes a great deal of the scientist's opportunity for his own continuing education and the education of young scientists.

Much has been written, and the subcommittee has heard much worthwhile testimony, on "fair use" and on copying, from people more competent than we in recommending specifically how the copyright law should be revised. As science publishers, we live by our own "doctrine of fair use" whereby we are far more permissive, we allow much more infringement of our market, than most other publishers can tolerate. So, we must refer to their desires on how "fair use" is handled by statute.

We have been surviving with a quite liberal interpretation of a "fair use" doctrine, statutory or otherwise-only because we've had to learn how to: the science community and, we believe, the courts wouldn't have it otherwise. As publishers for science, we strongly feel that the phrase from the Constitution "to promote the progress of science" must take precedence over our "exclusive rights."

And so, we must strongly feel that schoolteachers, librarians, and, in particular, scientists, must ask themselves whether the unlimited "right" to copy any copyrighted material-"in the interest of science"-carries with it any implication of loss of independence to our free science community.

We think it does.

We believe the exotic, "gee whiz" appeal of the newer copying machines is becoming the Pied Piper that is leading educators, librarians, and academic scientists into a trap, with 1984 "Big Brother" overtones.

As an example, consider here the testimony-perfectly sound in its own context-of a distinguished medical educator and leader of one of our most important scientific organizations, before the subcommittee reviewing the Medical Library Assistance Act of 1965. We can easily endorse him, his organization, his presentation, and the general objectives of the bill. But, part of his testimony-in the context of copyright law-is very relevant to "fair use" and to the future of original scientific publication:

"*** Such funds would also make it possible for libraries to expand their copying facilities so that most loans can be issued in copy instead of the original.

This system, now thoroughly tested in several centers, not only spares wear and tear on the original but provides the reader with a permanent copy for his own

use

Freely translated, this statement tells us that a typical new journal that is now "flourishing" with 1,500 subscribers-all paid for, cash-on-the-barrelhead, at $15 annually (less than 3 cents a page to the buyer)-could quickly and easily become a limited edition of about 300 copies, published for the convenience of copying machine owners and lessees and the people they serve, and, at an annual subscription rate of at least $75, or more!

Other journals may have a like fate. Those journals which now depend on the sale of reprints and back volumes could no longer count on income from these sources. There would, of course, be little or no advertising revenues for any journals, because advertisers would no longer have the benefit of either primary or "pass-along" readership. Those journals which survive could do so only by charging their authors high, "vanity publishing" page rates for the privilege of "getting published," and/or by getting grants-in-aid from the Government just to keep in business.

One of the ironies in another part of the same testimony quoted above is: "*** We are especially impressed with the need for Federal funds in support of special types of medical publications. It is paradoxical that there is a sizable number of biomedical publications which, although of little commercial promise, are inordinately valuable scientifically."

The good doctor is so right. There could be a few publications that might need a helping hand, hopefully only at the start. But, we must remind ourselves, there are about 15,000 biomedical and related serial publications. Of these, 6,000-containing over 300,000 articles annually-are picked for indexing by the National Library of Medicine.

Is it the intent of Congress to subsidize all of these publications, all these articles?

What an onslaught on Washington-and what a lot of grant applications for scientists to fill out for other scientists to review!

Who is to decide which journal of primary research is to survive?

Does American science really want NIH and maybe GPO to play gods and have the last word on scientific communication?

This is the future, if Congress gives anybody the right to copy anything he wants in the name of "education" or "service to science."

All of us will agree that the "information explosion" and the progress of American science has given us "too many journals," "to many papers," "too many backlogs of good papers waiting to be published." But where does who wield the ax? John Wanamaker often complained that half of his advertising was wasted, but he concluded, “I never knew which half"-and that illustrates a fundamental problem of science publishing in determining, in advance of hindsight, what original scientific paper sees the light of public scrutiny, gets "peer judgment," becomes memorialized in print in its entirety for the benefit and use of scientists in future years.

Some may say, "Well, after all, even if many journals are put out of business by widespread copying, only a very small number of journals account for the majority of papers that are worthy of memory, of documentation, of citation."

Quite true—but if only a small number of popular journals account for most of the reader traffic in libraries, then these are precisely the journals-the "important" ones who will first lose most of their circulation to indiscriminate copying.

And how about the "unimportant" journals-those that are devoted to a narrow specialty-those "obscure" journals with "obscure" papers of interests to only a hard core of dedicated scientists? Do the copying machine enthusiasts have the moral and legal right to doom these journals? It would be easier to tell off the marines than tell the editors and subscribers of these "small" journals that "your services to science are no longer necessary."

We said, earlier, that the protection of copyright keeps our company and its customers in existence. By "protection" we do not mean the exclusion of all others from the free use of material on which we or scientific societies hold copyright. Probably no science writing is done without drawing heavily upon what has gone before. The very nature of the subject, requiring step-by-step precedent and proof, demands that. As a result, we and other science publishers, and science authors, are in the unique position of borrowing freely and liberally from each other's publications. Quantities of text, illustrations, tables, graphs,

charts-all are routinely borrowable by the simple process of requesting permission. We could not, and would not, do other than interpret the doctrine of fair use as liberally as we do. We could not, because we ourselves must borrow liberally; and we would not, because we would earn the scorn of the scientists we serve, and be false to the basic premise of science publishing-which is the dissemination of information.

There is, however, a vast difference between this long-established type of fair use, where copyrighted material is copied by another author to add to and support his own new and creative writing-between this and the requested liberalization of fair use, which would allow the uncontrolled copying of copyrighted material solely as a substitute for the purchase of the printed word. The first we accept and live with easily-the second we must reject, because we believe that we, and science publication, will die with it.

Attacking education is like attacking motherhood—and yet we simply do not understand the position of an educator (Dr. Wigren, chairman of the ad hoc committee of educational organizations) who, before this subcommittee on June 3, 1965, asked: "Why should we have to pay for materials usage that is in the public interest?" Why should an educator pay something for using the product of an author's skill and toil? Why should he pay something for using the product of a publisher's investment? For the same reason that the educator, in building a school in the public interest, pays a brickmaker for his bricks and pays the bricklayer to put them in place. For the same reason that the educator himself expects to be paid for his own skill and toil-even though his work is certainly in the public interest.

It is certainly safe to say, rather sardonically, that we would yield the right to copy our published products without charge into the hands of educators and librarians-provided that the manufacturers of copying machines make them available to any and all schools and libraries without charge of any kind; no purchase price, no rental charge, no license fee. The absurdity of such a proposal points up what seems to us to be the equal absurdity of expecting authors and publishers to furnish, free, uncontrolled amounts of material for these machines and their users to copy. Controlled amounts, yes; uncontrolled amounts, no.

The irony of the situation lies in this paradox: that if uncontrolled copying is carried to its possible and probable conclusion, the copying machines will destroy the very things on which they feed, and in so doing, destroy themselves. Because they do not create, and are only parasitical feeders upon the products of others once they have destroyed their source of food they have destroyed themselves.

We all want a workable copyright law that will neither inhibit research and communications nor materially infringe on the property right and market of the copyright owner. Right now, however, publishers and scientists are in limbo under the present statute. "Leave it to the courts" is a convenient, theoretical doctrine and probably a wise one-but is of no real constructive help in applying the doctrine of "fair use" to the everyday problems of when and when not to copy a copyrighted work.

Consequently, there is undoubtedly widespread infringement-innocent and willful-wherever scientific research is done, and the current law is not operating as "an effective deterrent against numerous small, erosive violations of copyright owners' rights."

We would like to suggest a constructive deterrent to uninhibited and unrestricted copying, and we would like to suggest that the following recommendation be enacted now-by itself, as one piece of legislation-so that the effect of it will give Congress a better insight into the "fair use" question until the final enactment of the general revision of the copyright law.

We recommend that liability for copyright infringement be extended to include the owner and/or lessee of a copying machine.

This intentionally excludes the manufacturer, but it does now make clear and public and legal the present moral obligation of the owner of copying devices to prevent willful infringement, and to keep innocent infringement to a minimum. It permits no exemptions-the institution which has the machine is made responsible, by the stiffening effect of statutory law, for illegal copying. Quite bluntly, it means a copyright owner who feels he has been infringed upon can take into court not only the infringing individual but the institution-government, nonprofit, or commercial-which provided the service.

What would be the net effect of such a law?

Congress would have citizen help in enforcement. Congress would have the copyright law policed by the very people who benefit the most from scholarly publication-the libraries, the educational institutions, the faculty. Only theynot Congress, not the courts, not the publishers-can recognize, on the spot, "copying in lieu of notetaking," and copying in lieu of purchasing the copyrighted work. In case of doubt, only they are in a position to suggest that the permission of the publisher be obtained.

The point here is that ignorance of the law is no real protection for literally millions of potential innocent infringers. The only protection they have must come from their employers, from libraries, from whoever provides the facility for the possible infringement of copyright. They will get that protection from the owner or lessee of the copying machine if he realizes that he bears not only a moral obligation but also a legal responsibility to observe the requirements of copyright law and fair use.

We recommend also that the manufacturer of a copying machine be required by statute to affix a permanent warning, in a place easily visible to the user, to the effect that the use of the machine is subject to Federal laws on the reproduction of currency and on the reproduction of copyrighted works.

In one of the most widely used copying machines there is a warning against the reproduction of currency. It is inside the machine, normally visible only to a service mechanic, not the user. There may well be a practical reason for keeping that particular warning buried and not giving the general public some brand new ideas. However, the precedent for warning has already been established, and it seems to us that prominent display of a warning on possible copyright infringement will have a positive effect on the user. It may keep him out of trouble if the owner or lessee of the copying machine still assumes no responsibility for its use, still takes no responsibility for educating the user.

We are quite aware that the above two recommendations put into the laps of educators, librarians and scientists most of the problems inherent in "fair use," but we're quite sure that, by doing so, the Congress will have urged on all a self-discipline in copying which will help to insure that science communications remain free and independent.

We are also quite sure that discussion and testimony on the above two recommendations would bring about an immediate fish-or-cut-bait hassle on just what is "fair use" in science publishing. And, if they are to share legal responsibility for infringement, it is only fair and reasonable that owners of copying equipment be given guidelines which will enable them to be "used fairly" by those desiring copies.

Accordingly, we would like to suggest that an appropriate Government agency act fast and get a new consensus from all the major scientific societies and federations as to just what would be a good, working doctrine of ethical, honorable, "fair use" with respect to copying or other facsimile reproduction of scholarly, technical, and scientific publication.

Whatever they come up with, we would live with, and it would no doubt closely match what we've always considered "trade custom" in our business. In closing, we wish to repeat and emphasize the fact that science publishing is a relatively small, limited, highly specialized field. Despite this, we do not ask for special protection; we ask only that the broad general protection of copyright should not be diluted by special exemptions.

Copying machines have a tremendously useful function to perform. We only hope that, through misuse, they will not destroy publishing.

If unlimited copying of scientific works is permitted by Congress as a result of well-intentioned but shortsighted pressure by some commercial, schoolteacher, and library interests and as a result of indifference, apathy, or silence on the part of many leaders of the American science community, free and independent science publishing will perish.

We appreciate this hearing, and will gladly answer any further questions.

Mr. LODWICK. In one sentence: concerning the previous testimony from a very fine company, the 3-M people, who have some very fine products we disagree flatly with their presentation as regards section 107.

We are publishers of approximately 1,000 books, which we have in print right now, distributed all over the world.