I have read the study by Mr. Varmer on photoduplication of copyrighted materials by libraries. It is my personal feeling that the second approach suggested by Mr. Varmer on page 66, to wit "a working arrangement" or "code" would be more practical than a statutory solution to the problem.

Insofar as the music industry (with which I am closely associated) is concerned, I believe the following suggestions could form the basis of a workable code that would be fair to all parties concerned:

1. The person seeking a photocopy shall have attempted to purchase a copy of the work from the publisher.

2. If the work is out of print, the applicant will be sent a "permanently out-of-print" notice by the publisher. The publisher will exercise every effort to process such orders immediately upon receipt. Upon presentation of such notice to the library, the applicant will have the right to secure one photocopy of the work in question.

3. The code would make clear that no rights (performing, mechanical, or otherwise) are embraced by or deemed to be connected with the photocopy, or the permission to obtain same.

4. On each photocopy the library will identify the work from which the copy is made and if the work bears a copyright notice the notice will be reproduced on the photocopy.

5. The cost of making the photocopy and any fees attendant thereupon would be determined in accordance with the discretion of the particular library.

I fully understand that the above suggestions may not be fair when applied to books and scientific periodicials.

Kindest regards.
Sincerely,

PHILIP B. WATTENBERG.

By Robert Gibbon (The Curtis Publishing Co.)

JUNE 15, 1959.

This is in reply to your requests for comment on the stud[y], "Photoduplication of Copyrighted Material by Libraries." ***The problem discussed in [this] very interesting stud[y] has [no] particular application to our phase of magazine publishing. It is, therefore, very difficult to give constructive criticism.

In addition to the difficulties described in the photoduplication study is the development of portable and inexpensive photoduplicating equipment. Further technological advances along these lines will make it all the more possible to do surreptitiously that which now is generally requested of libraries. The notation that any statutory solution to this problem might quickly become outmoded is an apt one.

In the magazine business we have the satisfaction of knowing that it is cheaper to buy copies, if the issue is current or available, than to reproduce articles photographically or mechanically. If the issue is not available, the magazine publisher is not likely to be concerned by limited reproduction so long as copyright is protected.

This same solution might well serve other publishing interests. If the libraries were required or would agree to set prices for photoduplication on current or inprint material such that competition with the copyright proprietor would be discouraged, the problem would be considerably alleviated.

Sincerely,

56581-60-6

ROBERT GIBBON.

By Harry R. Olsson, Jr.

JUNE 19, 1959.

Re: Photoduplication of Copyrighted Material by Libraries-Varmer. I have the following comments to make on the questions raised by this excellent study:

1. My initial thought was the copyright statute should provide for the photocopying, or other copying, perhaps by other methods, for research and study purposes of copyright works by a centralized library, perhaps the Library of Congress. Other libraries conveniently located should be granted the same authority but their number should be kept relatively low.

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2. Copying should be permitted only where the work needed is unavailable on reasonable terms to the researcher and the statute should lay out a plan whereby the proprietor would be paid a reasonable royalty for each copy made. Perhaps the royalty should approximate what he would be paid had a copy of the original published work been purchased if the whole published work were copied or a proportion if only a portion were. I should make this provision for a royalty because I see no reason why the author of a work should have perhaps the largest part of his market for the work taken away from him without benefit to him. This might tend to dry up the supply of scientific and technical works which have at best a limited market. In cases where the author is selfless and desires the work to be freely copied, he can easily so provide by having a note to this effect accompany his copyright notice, if indeed he desires a notice at all. 3. The statute should specify the conditions under which copies may be supplied for research and study purposes. The most important condition it seems to me is that the work itself be unavailable or practicably unavailable. Included would be instances where the price set for the copyrighted material is wholly unreasonable or where the material as published is part of a greater work prohibitively expensive to him interested in only a part. I do not think the statute should attempt to discriminate among kinds of published material, for all kinds of material may serve the purposes of research and study, including even comic books that are nasty. In order to prevent abuse, however, I think the statute should provide, although probably it cannot detail, for a weighing of the need of the scholar against the legitimate need of the copyright proprietor for protection. For instance, I do not think a scholar making ready a book on the history of the motion picture art form should be sold a print of "Ben Hur" by the library merely because he wants to write about it. His scholarly needs can in all probability be satisfied by seeing the picture in a theatre or talking to a friend who did see it or looking at the scenario.

4. It would, of course, be wise to encourage libraries, publishers, and other groups to develop working arrangements to allow copying for these purposes by libraries. However, this is no real alternative to an express provision in the statute for no doubt some groups would fail to cooperate through opposition or disinterest.

5. As I said in 1 above, my initial thought was to recommend including provisions covering the above principles in the statute. But the necessary language to accomplish all this would probably have to be very complicated and technical, perhaps overly so. If the drafting of the language proved to be an impossible job or if the section in which it were contained became too unwieldy I think perhaps I should be in favor of leaving the problem to be handled by the courts under the doctrine of "fair use." I hesitate to leave it to the courts because of the statements of the text writers, and I believe judges, to the effect that it is never "fair use" to copy the whole work. Perhaps what is required is a negative in the statute of the idea that it is never "fair use" to copy or use the whole of a work. It might be possible to condition this to accomplish what I think would be a

beneficial result.

Sincerely yours,

HARRY R. OLSSON, Jr.

By Elisha Hanson

JULY 28, 1959.

Re: Copyright Revision Study, "Photoduplication of Copyrighted Material by Libraries," by Borge Varmer.

Statutory treatment of the broad problem of unauthorized mechanical reproduction of copyrighted material should be avoided if possible. The authors, publishers, libraries and users of the material should be encouraged to seek a solution through specialized contractual or other types of working arrangements.

As stated by Mr. Varmer, the essence of the problem is how to supply the copyrighted material without damaging the market of the copyright proprietor. The real problem concerns the unauthorized mechanical reproduction of copyrighted works by private individuals, corporate groups or libraries, for their own use or for use by others.

The problem of extensive photoduplication understandably has been a major cause for concern with publishers of scientific and technical journals. They share the desire to advance the cause of science, but they fear the financial impact of reduced subscription lists on their ability to gather and disseminate in the printed form the very information sought to be duplicated. As a consequence, any proposal which has the practical effect of eliminating all "scholarly" uses from the exclusive right of the copyright laws should be weighed most carefully.

Since the right to make a copy of his copyrighted work is one of the fundamental rights granted to the copyright proprietor, proposals to amend the law so as to permit others to copy the copyrighted material for the use of third persons and without the permission of the copyright proprietor should be rejected.

It is not only contrary to law but to business ethics to appropriate the property of another for one's use without the permission of the owner of that property, whatever its nature may be.

With respect to the study "Photoduplication of Copyrighted Material by Libraries" by Borge Varmer, I think it would be a mistake to expressly provide by statute the detailed conditions under which the making and supplying of photocopies may be permitted. For the reasons suggested in my comment on the study of "Fair Use of Copyrighted Works" I think it wrong to attempt to codify in any detail the doctrine of fair use, whether applied to photocopying for research purposes or to other purposes. However, since photocopying for research purposes may involve the copying of an entire article or other work (which ordinarily would exceed the bounds of fair use no matter what the purpose) it might be desirable to expressly provide in the new Copyright Act that the doctrine of fair use may apply to the copying of an entire work where such copying is for the purpose of research and study. However, whether or not in fact the doctrine of fair use should be applicable in such a situation must depend upon the weighing of delicate factors which only a trial court should determine. I do not think that a satisfactory solution can be obtained through "practical arrangements between libraries and research groups on the one hand and publisher and author groups on the other." Such arrangements like any detailed statutory codification would not be sufficiently flexible to meet the demands of particular situations. Moreover, such arrangements would not solve the problem with respect to publications emanating from publisher and author groups not party to the arrangements. Yours very truly,

MELVILLE B. NIMMER.

Re: Copyright Revision Panel Studies "Photoduplication of Copyright Material by Libraries".

You have asked for my comments, as a member of the Panel of Consultants and as Chairman of the Joint Libraries Committee on Fair Use in Photocopying, on Borge Varmer's revised study.

The joint committee has undertaken a study of the problems involved in photocopying by libraries and has recently obtained counsel to assist it in drawing up a statement that will fully express the position of librarians. Until this work is completed, I will not be able to take a firm position on any specific proposals or on Mr. Varmer's general question of whether a statutory solution is desirable. I am also unable at this time to comment on the treatment to be given library photocopying in the event a codification of the fair use doctrine is to be attempted. Mr. Varmer's description of the various legislative proposals and foreign statutes confirms my fear that any statutory limitations or restrictions on the making of