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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
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 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 bare 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 copy. right 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 ertended to include the owner and/or lessce 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 reproduce tion 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.
Our decisions on marketing are to determine approximately how many copies of a new book we can sell in perhaps a 2- or 3-year period.
The point we would like to register is that the decision is not in thousands, tens of thousands; it is in hundreds of copies. We can put out a book that is reasonably successful for science at between 1,500 and 2,000 copies.
One of our many periodicals is called Transplantion, an original primary research journal. It is successful and has about 1,100 subscribers all around the world. If we drop 100, 200, 300 copies because some feel they can photocopy this journa), as many people do, it eventually will go out of existence.
We don't think that is good for science. The 3-M people are beneficiaries, with their great products, of the original results printed in many scientific and scholarly journals. If photocopying is indiscriminately done by many, mostly innocent, infringers, many scientific journals will go out of business.
We have made some recommendations that I think would get to the heart of it. As pointed out above in our prepared testimony, we recommend that liability for copyright infringement be extended to include the owner and/or lessee of a copying machine.
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.
I would now like to turn this over to Mr. Old, to amplify on how we feel about section 107.
Mr. Old. Basically, 107 we would allow to stand as is. We have tried, and I have tried as an individual, to draw up a set of rules for defining fair use. I have tried to draw up a set which would define fair use within our very limited field.
May I digress for a moment and point out that we publish in a very limited and very important field, biomedical science. Our two companies publish or print about 150 journals. We publish, ourselves, about 45 of them. They are mostly for scientific societies.
Within that very limited field, I have tried to draw up a set of working rules for ourselves and the other publishers who deal with that type of material, and I must admit that I could not make the slightest suggestion. I know what the working principles are, because I deal with them all the time, but I could not put them into a concrete form as a guide for other people because they vary from book to book, from journal to journal, from user to user, and from the ultimate use to ultimate use.
I cannot define fair use other than as recommended in H.R. 4347. Mr. St. ONGE. Thank you.
Then, gentlemen, it would be the gist of your testimony that to allow a private individual to use a photocopying machine to make a complete copy of your works without being liable for copyright infringement could put you out of business.
Mr. LODWICK. Yes, sir.
Mr. St. ONGE. And you don't have specific language to add to the proposed section 107 as it stands in H.R. 4317 ?
Mr. Old. The section stating fair use!
Mr. St. ONGE. Yes.
Mr. POFF. I don't think this question is necessary, but to perhaps draw the boundaries, you would not expect the copyright owner to have a cause of action against a businessman who used a copying device in his office to copy from a news periodical a copyrighted piece to transmit for business purposes to another business associate?
Mr. Old. There is the point where you have to set up rules. Yes, in some instances, and in one specific instance which has received much publicity, that very thing that you mentioned causes loss not to us, but to the publishers of Washington newsletters, Kiplinger Letters. I don't cite those as specifics, but as the general type of material. Where they once sold 50 copies to a business firm, to go to 50 key executives, it is my understanding from reading in the news that that has dropped tremendously. They are copied, instead, and distributed.
Fortunately, they have been able to get around that. They have had to go to the extreme of printing the basic information against a red-orange background which, on the photocopying machine, comes out black. I have often wordered if we shouldn't perhaps get together with the ink manufacturers.
Mr. Porr. If you do, they will develop a countermeasure.
Mr. Old. Of course. But that is a specific instance where photocopying has seriously depreciated the actual investment of a publisher.
Mr. LODWICK. If they develop something to counter this, it will come right out of a scholarly or scientific journal, if it still exists.
Mr. Poff, I would like to add one thing. In your fine State you have two medical schools, very fine ones, down in Richmond and Charlottesville. I have been to both of them.
Mr. POFF. I hope not as a patient.
Suppose a doctor from down in one of the western counties has a patient with a rather puzzling complex of symptoms and signsmaybe a tropical disease—so he picks up the phone and calls one of his buddies in one of the departments of the medical school. They fill in each other on a few things and then the doctor is transferred over to the medical librarian.
The librarian gets into “Index Medicus," looks up the entry for the disease, takes photocopies of articles from maybe 12 journals, sticks them into an envelope and mails them to the doctor.
You can also have a different situation. Suppose the librarian says, “The Williams & Wilkins Co. has just come out with a nice book on the subject, but we only have one on the shelves. We will copy the book and send it off to you."
This is where this gray area af fair use hits us. In the first instance, where articles from some journals were photocopied, we know darn well this particular doctor wasn't subscribing to, or wouldn't subscribe to, a journal on tropical medicine. But where it gets sticky, even in this case, is the patient gets cured, Blue Cross takes care of the doctor, the taxpayers take care of the library, and here we are.