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Library support both locally and at the federal level is limited. Appropriate bodies, including the Congress, adopted measures designed to encourage the sharing of library resoucres. This is consistent with traditional library practices. The Revision Bill without the amendment we recommend would raise doubts about the continuation of this practice because photocopying has been one of the accepted ways of sharing scarce library resources.

The requirements of the Bill in its present form would also add substantially to the expenses of libraries because decisions regarding photocopy requests could only be made by highly qualified personnel.

It may be noted further that the copyright laws of most foreign countries contain a specific provision permitting library photocopying for purposes of personal study and research.

I would emphasize that the amendment we recommend refers to a single, i.e., one, photocopy; it applies to one article or item in a periodical, not to the whole issue; and it applies to a complete work, i.e., a book, only if the work is no longer available in book stores.

This amendment does not seek to legalize multiple copying. Libraries are not trying to become publishers; libraries do not wish to photocopy best sellers or complete issues of periodicals.

Revision of the copyright law has been underway for a period of years. In that time, copyright proprietors have repeatedly stated that library photocopying was causing serious financial damages to their enterprises. No evidence to support this contention has been presented. In the absence of evidence, it seems fair to conclude that the damage is not as serious as has been alleged.

For these reasons, the Association of Research Libraries recommends the adoption of the proposed amendment as a means of assuring library users of the continuation of an important service.

Thank you for your attention. Our legal counsel, Mr. Brown, will now discuss briefly some of the legal aspects of library photocopying and the proposed amendment.

AMENDMENT TO COPYRIGHT REVISION BILL, S. 1361 Substitute for section 108(d) the following:

(d) The rights of reproduction and distribution under this section apply to a copy of a work, other than a musical work, a pictorial graphic or sculptural work, or a motion picture or other audiovisual work, made at the request of a user of the collections of the library or archives, including a user who makes his request through another library or archives, but only under the following conditions:

(1) The library or archives shall be entitled, without further investigation, to supply a copy of no more than one article or other contribution to a copyrighted collection or periodical issue, or to supply a copy or phonorecord of a similarly small part of any other copyrighted work.

(2) The library or archives shall be entitled to supply a copy or phonorecord of an entire work, or of more than a relatively small part of it, if the library or archives has first determined, on the basis of a reasonable investigation that a copy or phonorecord of the copyrighted work cannot readily be obtained from trade sources.

(3) The library or archives shall attach to the copy a warning that the

work appears to be copyrighted. and renumber section 108(d) (2) to make it 108(d) (4).

STATEMENT OF PHILIP B. BROWN, ATTORNEY FOR THE ASSOCIATION OF RESEARCH

LIBRARIES

Mr. Chairman, members of the Committee, my name is Philip B. Brown. I am a partner in the Washington law firm Cox, Langford & Brown, counsel to the Association of Research Libraries. I appreciate this opportunity to appear before you with the President and Executive Director of ARL and the Chairman of its Copyright Committee. My statement supplements that of Dr. McCarthy with emphasis on recent legal developments bearing on the status of library photocopying under existing law and under the pending will.

The major legal development on this subject in recent years is, of course, the case Williams & Wilkins v. The United States, pending before the judges of the Court of Claims following a report of the Commissioner filed on February 16, 1972. The case has been briefed and argued to the Court and is awaiting decision. The Commissioner held that the photocopying of entire articles from medical journals by the National Institutes of Health and the National Library of Medicine at the request of doctors and medical researchers constituted infringement of copyright and he recommended that the Court conclude, as a matter of law, that plaintiff is entitled to recover reasonable and entire compensation for infringement of copyright, the amount to be determined in further proceedings.

Subject to the pending decision of the Court, the main effect of the Commissioner's report on library photocopying is twofold, first to rule that such photocopying as was involved in the case constitutes a violation of the copyright proprietor's rights under 17 U.S.C. § 1, and, secondly, to rule that such copying is not protected by the doctrine of "fair use." If the Commissioner's report should be adopted by the Court, the decision would constitute the first judicial interpretation of the 1909 Act as it applies to library photocopying and an interpretation contrary to both the libraries' understanding of the meaning of the 1909 Act and to the previously unchallenged long-standing photocopying practices of libraries.

These new developments underscore the importance of the libraries' request that Congress adopt a specific amendment to Section 108(d) of the pending Copyright Revision Bill authorizing a library to make a single photocopy of an entire journal article at the request of a user without such a practice constituting an infringement of copyright. Prior to Williams & Wilkins it could be argued that if libraries interpreted the 1909 Act to authorize such copying and could point for support to the fact that the publishers had not challenged that interpretation and had even participated in a Gentlemen's Agreement for a period of years which ratified the libraries' practice, there was no need to give the libraries explicit statutory protection on this point since the revision bill did not take away from libraries any rights which they then enjoyed under the 1909 Act. Today, it is no longer possible to assert that position, and the libraries' need for explicit statutory protection for such photocopying is clear.

The amendment to Section 108 (d) proposed by the American Library Association and endorsed by the Association of Research Libraries is essential to permit a library to make a copy of an entire journal article for a user. Such an amendment would be fully consistent with the literal wording of all copyright statutes prior to 1909 and fully consistent with the interpretation placed on the 1909 Act by users and publishers alike for a period of 60 years.

In addition to adopting the specific photocopying amendment, we respectfully submit that Congress should also clarify and endorse the application of the doctrine of fair use to library photocopying practices. This is important both because the doctrine had not previously been judicially applied to library photocopying and because the report of the Commissioner in Williams & Wilkins, if allowed to stand, would raise serious doubt whether the doctrine could ever apply to library photocopying of an entire article. The Commissioner determined that the copying involved in NIH and NLM constituted “wholesale" copying, apparently simply because of the large number of individual requesters for each of whom the library made a copy. The Commissioner also referred to the facts that, on rare occasions, the same requester received a second copy at a later date and that the library furnished a copy of the same article to a number of different requesters. If these facts constitute "wholesale" copying, sufficient to deny a library the defense of fair use, it would appear that the defense would not be available to any large library, such as any of the major research libraries of this country, simply because the total number of patrons of each of these libraries would be so numerous as to fall within the Commissioner's term “wholesale," and thus go beyond his interpretation of fair use.

In order to restore the application of fair use to library photocopying consistent with the intent of the bills considered by this Committee over recent years, it is essential that Congress reject the interpretation given to fair use by the Commissioner in the Williams & Wilkins case and that Congress further declare that the long-standing practice of libraries of making a single copy of copyrighted material, including an entire journal article, is within the meaning of fair use in this bill.

Accordingly, there are two changes in the bill which libraries are requesting of this Committee : The first is the specific amendment to Section 108(d) proposed by ALA and ARL. The second is clarification that fair use applies to the normal library practice of making a single photocopy of copyrighted material, including an entire journal article, for a user.

We respectfully submit that these protections are essential to permit libraries to continue to serve the needs of scholars and to make appropriate use of existing technological aids in doing so. We submit that there is no evidence of damage to publishers resulting from this practice and that, in fact, the practice promotes subscriptions to journals rather than replacing them. There is certainly no evidence that this practice is driving publishers out of business. Library photocopying deserves continuing protection from Congress. In view of the uncertain state of the law resulting from the Commissioner's report in Williams & Wilkins, the statutory protection should be clear and certain.

The need for clarity and certainty is underscored by the fact that, without the protection of the proposed amendment to Section 108(d), a librarian could well be liable for the extensive damages provided for in Section 504 of the bill. The sentence in Section 504 (c)(2) which allows the librarian to prove that "he believed and had reasonable grounds for believing that the reproduction was a fair use under Section 107 ..." is rendered virtually meaningless by the report of the Commissioner in Williams & Wilkins. Without the proposed amendment to the bill, the librarian would undoubtedly refuse to run the risk of rendering the service to the patron—to the great detriment of research and scholarship.

Senator McCLELLAN. Thank you very much.
Call the next witness.

Mr. BRENNAN. The next witnesses are on behalf of the American Library Association, Dr. Edmon Low.

Fifteen minutes have been given to the American Library Associa

tion.

Dr. Low, would you identify yourself and counsel for the record, please?

Dr. Low. I am Edmon Low, librarian of New College in Sarasota, Fla., and am chairman of the Copyright Subcommittee of the American Library Association, and with your permission I have asked Mr. North, who is our counsel for ALA, to sit with me to help on any legal problems.

Senator McCLELLAN. Very well.

Dr. Low. In the interest of saving time, and because my statement duplicates to some extent what has been read, I thought it might be better for me to just emphasize a few points that have not been covered and submit my statement for the record.

Senator McCLELLAN. Yes. Your statement will be printed in full in the record.

Now, you may highlight it or supplement it anyway you like.

STATEMENT OF DR. EDMON LOW, LIBRARIAN OF NEW COLLEGE,

SARASOTA, FLA., AND CHAIRMAN, COPYRIGHT SUBCOMMITTEE OF THE AMERICAN LIBRARY ASSOCIATION, ACCOMPANIED BY WILLIAM D. NORTH, ESQ., COUNSEL

Dr. Low. The first observation I have to make is that copyright is not a constitutional right. This is often not understood, certainly understood by attorneys, but often not by the public. It is not a constitutional right. It is a statutory right, one created by law, and which can be changed by law. That is, the rights are granted by the copyright law as it is written, so in revision of the copyright law, you can either enlarge these rights or restrict them or change them in any way or abolish them altogether in your Congress here assembled. It is a statutory right.

Consequently, as I see it, the problem of the committee is to balance the need of protection for the copyright owners to insure them a reasonable return for their efforts and for their expenses of publication and so on, and at the same time, to protect the public good and the right of the public for proper dissemination of publications, which is the area in which libraries are engaged.

There is no collection that contains nearly all the materials which are available, even our Library of Congress, probably the largest library in the world. There are many thousands of titles in the United States that are not in the Library of Congress, and even the smallest libraries often have titles that are not found anywhere else, and this is just for titles in the United States, without considering titles all over the world.

So, in research it is very desirable to have as free a dissemination of information as we can, á listing of what is available, both periodical articles and monographs, and the ability to exchange the information in the most propitious manner.

I happen to be librarian of New College at Sarasota, Fla. I have been director of a university library for many years at one time, and then taught at the University of Michigan and have retired there, and am now finishing my career as the librarian of a small but very fine college down in Florida. I like the small colleges. I think they do very fine work, and my college is typical of the many small schools that are found over the country. Of some 2,500 accredited institutions of higher education in the United States, over 2,000 of these are smaller schools such as my college and would correspond somewhat to Hendrix College in your State, Senator, or College of the Ozarks at Clarksville, or Cuachita Baptist at Arkadelphia, or Jamestown College in North Dakota, and also the community colleges are small but very thriving schools. None of these can have the great library collections. So we have faculty that need to keep up their work and research in order to keep up their quality of teaching, and these faculty, among others, supply articles for the journals which eventually are copyrighted and published.

So it is very important to the smaller library, both the public library which Senator Burdick mentioned and the smaller college library to be able to borrow from the larger libraries as we borrow at times from the University of Florida at Gainesville or Hendrix would borrow from the University of Arkansas at Fayetteville, or even sometimes going more widely where needed esoteric journals cannot be found close by.

So, it is extremely important that we are able to continue this work. And we do not lend much material because our libraries are not large enough. We are the borrowing end, and libraries represented by Mr. McCarthy's group here, are the ones who lend to us, and they are the ones that would be threatened by the law if they went ahead copying for us.

Inter-library loan increase random requests and it is often not recognized that this type of loan increases the subscriptions often as well as is sometimes represented, although I have not had that experience, of discontinuing a periodical because something could be secured on inter-library loans.

For instance, at my school we will, if we borrow as much as two articles from a periodical during a year, try to put that periodical on the subscription list the next year. We feel that if we never request an article from a periodical, obviously we have not damaged its sales. If we have just requested one article over a period of a year, we have not damaged its sales. We spend every bit of money that we can possibly afford for periodical subscriptions, and that is true everywhere. Librarians would always rather have a periodical in hand than to have to borrow it.

So, if copying were restricted, it would not result in a larger periodical list for us or for these other libraries. It would simply mean that we could not help in maintaining the quality of education and quality of teaching and research that we are now able to maintain.

The inter-library loan is one of two groups of copying. The other is referred to as in-house copying, which is done by libraries, generally, but which is the less important of the two because in in-house copying, your material is there and available, but in the inter-library loan, it it not. The material is not there, and this is the only practical means of approaching this.

We are recommending the same amendment that was recommended by the Association of College and Research Libraries. That is, we wish to make a copy of a periodical article where needed, or a small portion of other copyrighted work.

Now, in this we are not wanting to go beyond fair use. The librarians have been accused at different times of having fair use and now they want to go beyond this and do something that is illegal. We are not wanting to go beyond fair use. We are wanting by this amendment to state definitely what fair use is. That is so we can know and not be subject to suits.

Now, we do not think that there would be suits expecting to make any money off librarians, because we do not have any, at least I have not found librarians that have, but we could be subjected to very harrassing suits since larger sums of money can be sued for under statutory damages.

So we would like to have the librarian free of this threat of suit which he cannot be under the fair use that was described here a few minutes ago, because he cannot be sure in any case that he has a right to make a given copy until it has been determined by the court.

So we are searching for this precise definition of what would be reasonable fair use.

Lastly, I should emphasize that I am sure that I speak for all librarians, that we are law abiding citizens, and we are going to abide by whatever law is ultimately passed, both in letter and in spirit. So if a law is passed which is too restrictive it means that we cannot do our jobs as well as we could otherwise. These are the points that are included with one or two additions here to my written statement, and I do appreciate this opportunity to appear before you this morning.

Senator McCLELLAN. Dr. Low, you support the amendment that is offered by Dr. McCarthy?

Dr. Low. Yes, sir.
I wish to submit this amendment.

Senator McCLELLAN. It is attached to your statement. It is already in the record.

Dr. Low. Yes, sir.
Senator McCLELLAN. One question.

What you are saying, as I understand you, you are not opposing fair use. You are seeking a definition in the law of what is within the limits of fair use.

Dr. Low. That is right, sir.
Senator McCLELLAN. Senator Burdick.

Senator BURDICK. Well, I want to thank you for your testimony. I note that you say that you would like to be sure of where you aře. I think that is the word you used, but as I listened to Dr. McCarthy and listened to you, we are in a very fuzzy area, no matter what we do.

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