to have available modern tools to facilitate their research work, subject to due regard for the rights of copyright owners.12 It is generally recognized that the problem of photocopying has two distinct aspects, the copying of entire books on the one hand, and the copying of extracts on the other. We believe that a principled compromise between the needs of scholarship in using copyrighted works and the legitimate interests of authors and publishers in protecting the market for them is to be found by distinguishing these two aspects. Thus, we have concluded that photocopying of an entire copyrighted book for a scholar should not be undertaken by a library without securing the consent of the copyright owner. Neither of the two common bases for resort to this practice is valid: (1) Inaccessibility or expense of a copy of the work itself is a self-defeating justification for utilizing the easy and inexpensive methods of photocopying. In the long run, the cost of copyrighted works as published, as well as the degree of their accessibility in nearby libraries, will be functions of the demand for the works; to the extent that substitutes for purchasing published copies are widely utilized, it can only be expected that scholarly works more generally will be published in smaller quantity and become still more inaccessible and expensive. (2) With respect to out-of-print works, many publishers have licensed agencies for preparing complete photocopies upon request. While it may in some cases take more time to procure a copy from such an agency than from a nearby library, the protection of the economic interest of the author and publisher warrants the delay (which may be no greater than that involved in purchasing a book by mail). If there is no licensed agency, and unless a revised edition is in preparation, it would be rare for a publisher to refuse consent to photocopying by a library. There may be a few cases in which there is some substantive reason for the author or copyright owner to wish to withhold further reproduction of a work, and to permit libraries to circumvent this consideration would eliminate a significant right inherent in the copyright. On the other hand, we strongly urge that libraries be authorized to furnish extracts to patrons for research use. As generally stated, this aspect of photocopying refers to the duplication, at the specific request of a library patron, of not more than a single contribution to a periodical issue or collective work, or of a "similarly small" or "relatively small" extract from a book. It is dubious that copying on this scale, however frequently repeated in response to different requests, can substantially affect the sales of periodicals or reference works." The proposals that have been made for central clearing and payment of royalties on account of photocopying by libraries seem to us too complicated and too burdensome for libraries to be justified in relation to the photocopying of extracts on the scale described in this paragraph. In striking the balance between the needs of library users and the economic interests of copyright owners, it is appropriate that the privilege of photocopying extracts be limited to libraries of nonprofit organizations." Moreover, to minimize the element of economic gain to either the user of extracts or the library in photocopying instead of purchasing a copy of the work, the library should be required to charge for photocopying at cost. Some general warning of copyright restrictions on further use of photocopies should be given by the library. 12 In this section, it should be noted, we are considering only the making of single copies at the request of a library patron, and not multiple reproductions for distribution to classes or otherwise, interlibrary or intralibrary uses of photocopying for "housekeeping" purposes, or the practices of libraries of business concerns, all of which involve other considerations. 13 It should be noted that we are dealing here with copying from conventional printed or manuscript materials in a library's collections, and not with the use of electronic informa tion storage and retrieval systems. The latter, by permitting the recording of works in a "knowledge core" at a central point with direct, quick access from other locations by electronic means, could well reduce the sales to individual libraries of works such as periodicals and reference books, whose primary value is availability on call. The use of such electronic systems accordingly involves different considerations, and clause (3) of the suggested provision on photocopying is intended to exclude the operation of such systems from the scope of this provision (see below). 14 Compare the definition of libraries given special privileges under the import restrictions of the bill (secs. 601 (b) (4) (C) and 602 (a)). The proposed provision would be an additional section in chapter 1 of the bill, and might read as follows: 15 "SEC. -Limitations on exclusive rights: Copying by libraries “(a) Notwithstanding the provisions of clauses (1) and (3) of section 106(a), a library of an organization operated for scholarly, educational, or religious purposes and not for private gain is entitled, without the authority of the copyright owner, upon the request of any person to duplicate by any process and furnish to such person a single copy or phonorecord of an extract from a copy or phonorecord of a copyrighted work in its collections other than a motion picture, but only under the following conditions: "(1) The extract shall consist of no more than one separate contribution to any periodical issue or other collective work, or no more than a relatively small part of any other work; "(2) The library shall furnish such copy or phonorecord without profit to itself, but shall charge the person to whom it is furnished an amount approximately equal to the cost (including labor and overhead) of duplicating and furnishing it; "(3) The library shall furnish such copy or phonorecord on its premises or by delivery in the form of a material object and not by transmitting the work or the extract therefrom; and "(4) The library shall by reasonable means inform its patrons that a person to whom such a copy or phonorecord is furnished is not exempt from liability to the copyright owner for any use of such copy or phonorecord constituting an infringement of copyright." 1. Notice of copyright C. MISCELLANEOUS PROBLEMS The retention in the revision bill of a requirement of notice of copyright on published copies (sec. 401 et seq.) is of great importance to individual scholars as well as libraries. In addition to the two major copyright purposes served by the notice-giving an indication of whether copyright does subsist in the work, and of the identity of the proper source for permissions to use the workthe notice of copyright, in stating the year of first publication of the work, also serves substantively in the research process of scholars, and in the selection and cataloging processes of libraries, to indicate the timeliness or vintage of the contents of the work. Of course, the information for any of these purposes given in a copyright notice may not be precise," but it does afford a useful starting point for further inquiry, and in many cases will be sufficient to make correspondence with the publisher or author unnecessary. In light of the amelioration which these sections of the bill make in the technicalities concerning notice and in the consequences of inadvertent failure to observe them, the great usefulness of the copyright notice far outweighs any inconvenience of the requirement to publishers. 2. Manufacturing clause The many arguments against continuation of the requirement that English language books by American authors must be manufactured in the United States, and the justifications asserted for the requirement on behalf of the printing industry, need not be rehearsed here, as they have been fully stated by others. From the viewpoint of scholarship, the arguments for abolition of the “manufacturing clause" make the better case. As a general proposition, the scholarly community favors the removal of all unnecessary restrictions on the free flow of ideas. To the extent that complete or partial manufacture abroad would enable more books-of any character-to be made available to the American public at reasonable prices, or to be published at all, the removal or easing of inhibitions on such manufacture in the copyright 15 The references in the suggested provision to the types of works which may be duplicated and to the types of duplicates permitted are based in part upon sec. 7 of the preliminary draft prepared by the Copyright Office for discussions held in 1963-64 (copyright law revision, pt. 3, p. 6). As the preceding text indicates, our primary concern is with photocopies in visually readable forms (including microfilm) of extracts from written works, including unpublished manuscript materials. The provision suggested would not affect restrictions imposed on unpublished manuscripts by agreement with the party depositing them in the library (see above). is Because of assignments of copyright, inclusion of material from prior versions in a particular edition of a work, and other variations as to name or date permitted in a copyright notice. law is desirable. Thus, the ACLS committee would favor total elimination of the manufacturing clause from the copyright law. If this goal cannot be achieved, we endorse the various changes easing the strictures of the manufacturing clause made in section 601 of the revision bill. One ameliorative aspect merits specific comment, for it may be of most direct aid to the publication of scholarly works in particular. That is the increase from 1,500 to 3,500 in the number of copies permitted to be imported (with elimination of the ad interim copyright procedure which presently limits the worth of even the 1,500-copy limit). Works of a specialized nature, be they doctoral dissertations on abstruse historical or literary points, or collections of experimental poetry or the like, have a small market at best. In the many cases where the additional 2,000 copies permitted under the bill will make publication abroad economically feasible (by combining access to a small American market with what may be a similarly small audience in other countries), this change represents a great advance for scholarship, and at no demonstrable harm to the domestic printing industry. It may be that a higher cutoff figure would be more practicable in terms of normal editions for scholarly works, taking into account not only present practices but the expansion of the scholarly community in the years ahead which will be governed by the new law. In that event we would support modification of the import limit to include such a figure. However, we have concluded that it would not be appropriate to open up the import restrictions for university press books alone, since many works of scholarship, despite their small runs, are issued by trade publishers, whose efforts in this direction should not be discouraged. We vigorously object to one backward step in the revision of the manufacturing clause set out in the bill. Section 601 (c) defines the required manufacture in the United States in the language of the present statute with respect to books produced by typeset processes and by lithographic or photoengraving processes. There follows a final sentence which requires, with respect to "any process other than those specified" in the subsection (and in the present law), that "every step" in the manufacture take place in the United States. It has been suggested that this final sentence will bar the use of "reproduction proofs" and other means of utilizing foreign typesetting for the manufacture in the United States of books by photo-offset lithography. We do not believe the sentence should have this effect, inasmuch as the preceding language of the subsection with respect to lithographic processes is the same as in the present law, under which the Copyright Office has acted on the basis that the manufacturing clause is satisfied if the plates are made, and the printing and binding are done, in this country. The Register's Supplementary Report (pp. 146-147) confirms that the use of the existing statutory language in the preceding sentence is intended to leave unaffected the question of applicability of the manufacturing clause in these circumstances, and that the final sentence does not apply to such cases. However, more broadly viewed, the final sentence is unwarranted for creating an explicit prohibition of any step of foreign manufacture out of the "extremely obscure provision" referring to other processes in the present manufacturing clause.17 The sentence is particularly objectionable for extending the anachronistic requirements of the manufacturing clause to new reproductive processes currently being developed or that may be developed in the future. We have seen no evidence that there has been any reliance on a domestic manufacturing requirement in the nurturing of a U.S. industry in processes other than the con 17 The reference in the present law-described in the Register's Supplementary Report (p. 147) as an "extremely obscure provision"-was added to the first proviso of 17 U.S.C. sec. 16, which sets forth several exceptions to the manufacturing requirements, by an amendment of 1926. The purpose of the amendment was to establish that the specification of manufacturing requirements with respect to works manufactured by the named conventional printing processes did not preclude the securing of copyright on works manufactured in the United States by other processes, rather than to impose a requirement of complete domestic manufacture in the case of works manufactured by such other processes. The Copyright Office has acted on the basis that works manufactured abroad by other processes were not barred from U.S. copyright registration by the present manufacturing clause. See the Copyright Office Revision Study on the manufacturing clause, published in 2 Studies on Copyright 1123, 1139-1140, 1154 (Arthur Fisher Memorial edition, 1963). It is also significant that secs. 17 and 107 of the present law, which implement the manufacturing requirements created by sec. 16, pick up the definitional phrases of sec. 16 relating to the conventional printing processes but contain no wording explicitly pertaining to that of the proviso of sec. 16 referring to other processes. 1559 ventional typeset or lithographic and photoengraving processes, and of course there can have been no such reliance with respect to new processes that may be developed in the future. Accordingly, the arguments for retention of the manufacturing clause with respect to the conventional printing processes are completely inapplicable here, and we strongly urge deletion of this final sentence of section 601 (c) from the bill. 3. Government publications In defining works of the U.S. Government, so as to provide that such works are not copyrightable, the revision bill properly excludes from the definition works prepared by universities, other private institutions or individual scholars financed by research grants from the Government (sec. 105). The considerations supporting unfettered dissemination of writings by Government officers or employees prepared within the scope of their official duties, reflected in the policy decision that such writings should not be copyrightable by the Government (or the individuals involved), are not generally applicable to works written by private persons or institutions. These works, produced under various types of Government grants in large numbers, do not necessarily deal with subjects of specific governmental concern, but advance knowledge generally. The extent of the stimulus to their having been written, as well as the extent of the economic support, afforded by the Government grant varies greatly from case to case. The investment necessary for publication under private auspices may be impossible to secure without copyright protection, so that denial of copyright may have the effect of narrowing rather than broadening the dissemination of the product of the research grant. In appropriate cases, moreover, the Government by agreement with the grant recipient may take an assignment of the copyright or of certain pecuniary or other rights under it (sec. 105(a)). Respectfully submitted. AMERICAN COUNCIL OF LEARNED SOCIETIES, WALTER MUIR WHITEHILL, Chairman, Committee on Copyright Revision. APPENDIX A The American Council of Learned Societies is a private nonprofit federation of national scholarly organizations concerned with the humanities and the humanistic aspects of the social sciences. It was organized in 1919 and incorporated in the District of Columbia in 1924. The ACLS represents the United States in the International Union of Academies. American Philosophical Society, 1743 American Oriental Society, 1842 American Numismatic Society, 1858 American Philological Association, 1869 Archaeological Institute of America, 1879 Society of Biblical Literature, 1880 Modern Language Association of America, 1883 American Historical Association, 1884 American Economic Association, 1885 American Folklore Society, 1888 American Dialect Society, 1889 Association of American Law Schools,1900 Mediaeval Academy of America, 1925 Mr. ST. ONGE. Thank you for summarizing your statement so adequately, Mr. Burkhardt. As I understood your remarks, you said it might be fairly easy to set up a system of fees and royalties in connection with the use of computer retrieval systems. Would you be prepared to submit to the committee such a system, at least in broad outline, broad form, or is that beyond your talents? Mr. BURKHARDT. I am afraid it is quite beyond my capacity to do, sir, but as a general observation, I would say that since the electronic computer program can handle so many different items, the item of how many times a periodical has been used, what sections have been used, and so forth, can be recorded each time the use is made. It becomes an easier problem to prepare a recording of uses with the electronic equipment than it would be for a library or a librarian to have to carry a complete record of every time this collection or this magazine or this paper is used, and what has been used from it. That would be an impossible burden, but not with an electronic system. However, I must say that this is a perfectly amateur opinion. It just seems mechanically and technically more possible there. Mr. ST. ONGE. Thank you, sir. Mr. Poff? Mr. POFF. In your summary, at page 2, paragraph 2, your last clause numbered (b), I assume you mean that a judge should have the power to exempt a scholar from statutory damages, if he the judge-were convinced that the scholar was acting in good faith? Mr. BURKHARDT. That is right; an innocent infringement, I think it might be called, or even a technical infringement which actually caused no damage to the owner-didn't affect the market in any way, but, nevertheless, was an infringement in the judgment of the court. In that case, it would seem to us unfair to automatically make the man pay $100, which the proposed legislation does. Mr. POFF. I don't want to quarrel with your language, but bona fide fair use, to many, is a meaningless phrase. If it was fair use in fact, it would not be subject to statutory interpretation. Mr. BURKHARDT. Yes. "Good faith" is the proper term. Mr. PoFF. You made reference to an earlier form of the fair use statute and I assume you had reference to section 6 of H.R. 11947. Is that correct? Mr. BURKHARDT. That is set out on page 14 of our report. It indicates that from section 6 of the earlier version of the copyright revision bill, we have suggested the retention of this set of criteria. Mr. POFF. That is all, Mr. Chairman. Mr. ST. ONGE. Mr. Tenzer? Mr. TENZER. I have just a few questions, Mr. Burkhardt. Since I haven't had a chance to read your full statement, I don't know whether the answer to my question is contained in it. |