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For example, in your amendment, part 2 of what Mr. McCarthy presented, let me read it with you.

The library or archives shall be entitled to supply a copy or phonerecord of an entire work, or of more than a relatively small part of it.

Well, that could be, a relatively small part could be debatable, but let's go beyond that,

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.

Now, you tell me what is a reasonable investigation ?
Dr. Low. I realize that is

Senator BURDICK. That has the same failings as the language that you are complaining about.

Dr. Low. We do not anticipate that there would be a problem in interpreting that. This is put in because in the copyright law, when you grant exclusive right to the author to the copyright proprietor, this is a monopoly, but there is no restriction on this monopoly as in most monopolies that are granted. There is no requirement for the publisher to keep things in print. If you grant a monopoly to a telephone company to serve in your city, then it is not only regulated, but you demand them to give service, so if you granted a franchise for 25 years, and then after 2 or 3 years it said, it is not profitable, so we are going to discontinue our telephone service, but we will not give up the franchise. Well, then we would not put up with that for a moment, but we do give an exclusive right to the copyright proprietor, to the publisher to publish without any requirement that he keep the book in print, and most books go out of print in the first three years after being printed.

So this is an effort, if we find that it is not in print, is not available from the usual trade sources, because even if it is not in print, sometimes it is available through second hand houses, but that is just a general search that maybe they will have it and so on, but if we cannot find it, and it is not available from the usual publisher, then we want the authority to make another copy of this, if it is needed.

Senator BURDICK. Yes, but to use your language, you want to be sure.

Now, I come in to get a copy of a particular work. What do you have to do as a librarian up in Williston, N. Dak., again, to make a reasonable investigation?

Do you have to make a lot of phone calls, write a lot of letters, or what do you have to do?

Dr. Low. There is a publication that is widely distributed—nearly every library has it-entitled "Books in Print," and this is the list of books that the publishers have in print. It is put out every year at a given time. We would look in that first, and if it is not listed in there, we would look also in the Cumulative Book Index. We would assume then, if it was not listed in these, that it is not available in the convenient trade sources.

Now, this is an area here that we have been able, I think, to come to general agreement with the publishers that this would probably be all right. We have not come to any firm agreement, but we have explored various ways of getting together and doing away with our differences. I think that we could get some agreement on reproducing things that are not in print.

This does become more important in light of the provision in the revision bill which extends the time of copyright. Now, the further you extend the time of copyright, the larger the percentage of material that will be out of print but is still covered by copyright.

Senator BURDICK. Well, then, you think this catalog that is put out indicating when books are published, and so forth, would be adequate if you would thumb through that catalog to see whether or not it is available?

Dr. Low. That, I think, adequate; yes, sir.

Senator BURDICK. Even though it may be available outside of information in the catalog.

Dr. Low. It might be, but I said, we might also check the Cumulative Book Index, which is another very general listing, even more general than the books in print.

Senator BURDICK. Do small libraries in small towns have this service?

Dr. Low. Yes, sir. Practically every library buys these. These are just for ordering your books, you see. You need this because, if you order a book, you have to find out who publishes it unless you are going to a dealer.

Senator BURDICK. I just want to point out that it is complex and it is hard to be absolutely certain when you draw a piece of legislation.

Dr. Low. It is, and I suppose I am overstating it to say that the amendment we propose would make it absolutely certain. We think that it would be of so much help in determining where we stand that it would be very desirable.

Senator BURDICK. Thank you.

Senator MCCLELLAN. Both you and the publishers are reaching some accommodation. Have they agreed to your amendment?

Dr. Low. No, sir, they have not.
Senator McCLELLAN. Well, I thank you.

[The prepared statement of Dr. Edmon Low on behalf of the Ameriican Library Association follows:] STATEMENT OF EDMON Low, CHAIRMAN, COPYRIGHT SUBCOMMITTEE, AMERICAN

LIBRARY ASSOCIATION I am Edmon Low, director of the Library of New College, Sarastota, Florida, and chairman, Copyright Subcommittee of the American Library Association, a nonprofit, educational organization founded in 1876. Its membership includes some 30,000 librarians, trustees and other public-spirited citizens dedicated to the development of libraries as essential factors in the continued educational, economic, scientific and cultural advancement of the American people. The Association is concerned with the development of all types of libraries-public libraries; school and college and university libraries; medical and law libraries and other specialized libraries—and with the problems they encounter, such as financing, relations with their patrons, and the legal provisions under which they operate, including copyright.

We are concerned here today with the Copyright Revision Bill, S. 1361, and primarily with the provisions relating to photocopying in libraries. This is a subject of great concern to all librarians and to the patrons whom they serve__the general user of the public library, the student, the scholar, the research man, the lawyer, doctor, minister or other professional individual, or to the Congressman himself, as he frequently turns to our great Congressional Library for aid in his important work.

This copying may be roughly divided into two groups, the first being that done either by a member of a library staff or by the user himself from material in the library for immediate use on the premises or nearby; the second, that done by one library for and at the request of another library, often some distance away, for use by one of its patrons there. The first is often designated "in-house" copy

ing, while the second we usually refer to as “inter-library ioan." The first is often only a convenience to the patron, as for instance a student writing a term paper, in that he does have the material in hand and could use it on the premises; the second is basically the more important in that the scholar or other user does not have the document in hand and therefore it is his only practical access to what may be highly important material for information or research.

It is now generally understood that a single collection of books or other recorded forms of thought as represented by a library can contain only a fraction of the total amount of material in existence. Even the Library of Congress, possibly the largest single collection of materials in the world, does not have many thousands of titles which exist in the United States, to say nothing of those elsewhere in the world, while on the other hand even a relatively small library will often have titles not found anywhere else in the country. The location and cataloging of these titles, and of articles in journals, and the making of same available readily through photocopying or loan—the dissemination of knowledge—is indispensable to education and research and often involves the reproduction by photocopying of a portion of a monograph or a journal article protected by copyright.

It should be noted that copyright is not an inherent right, such as trial by jury of one's peers. It is a statutory right-one created by law-and may be changed, enlarged, narrowed, or abolished altogether by the Congress here assembled. It is a law enacted not for the benefit of an individual or a corporation but for the public good and with the purpose, as the Constitution expresses it "to encourage progress in science and the useful arts.” Consequently, in considering revision, the problem becomes one of providing protection to the author or publisher to provide reasonable return on the investment of time and money, and at the same time to provide for the widest possible access to and dissemination of information to the public.

At present I am Director of the New College Library at Sarasota, Florida. New College is a small, but very fine, private college and its problems in this connection are typical of the two thousand small and medium-sized colleges throughout the country. While our library is liberally supported and spends every cent it can afford on serial subscriptions, we cannot possibly have the large resources of a university like the one at Gainesville or at Tallahassee. Yet our faculty members, if they maintain a good quality of teaching and do the research which contributes to it, must have access by random photocopying at times to the larger collections in the State and elsewhere.

It is usually not known that the inter-library loan arrangement often encourages the entering of additional subscriptions by the library rather than reducing the number as is often charged. It is a truism that a librarian would rather have a title at hand rather than to have to borrow even under the most convenient circumstances. Consequenlty, when the time comes around each year to consider the serials list of subscriptions, the record of inter-library loans is scanned and titles are included from which articles have been requested with some frequency during the year. In our library the number is two; if we have had two or more requests for articles from the same title during the year, we enter a subscription. This not only indicates how the procedure can help the periodical publishers but also indicates that if only one article or none was copied from a title during a year, the journal could not have been damaged materially in the process. It is not only the small schools which would suffer if such photocopying were eliminated, however; the scholars at Illinois or Cornell would also be severely put to it to continue their research in the same way and it is these scholars which account for the major writing for the scholarly journals. The journals themeslves, therefore, have a stake in seeing this procedure continued in a reasonable way.

Courts have long recognized that some reproduction of portions of a copyrighted work for purposes of criticism, teaching, scholarship or research is desirable and this judicial concept, known as “fair use," is incorporated in Section 107 of the revision bill. Libraries have operated all these years under this principle but it does lack the assurance of freedom of liability from harassing suits which the librarian needs in his work. This fair use concept necessarily is expressed in general language in the bill so a librarian will not be able to be sure, until a court decides a particular case, whether his action, undertaken with the best of intentions to aid the patron, is or is not an infringement. Fair use, then, is really not right to copy any given thing, but only a defense to be invoked if one is sued. This threat of suit, even if one is able to maintain his innocence in court, is very real because suits are costly in proportion to the amount for which one is sued. This revision bill provides not only for demand for actual damages but also one can be sued for statutory damages up to a limit of $50,000 for each imagined infringement.

This threat has now become much greater by the recommendation of Commissioner Davis in the Williams and Wilkins case now under appeal in the U.S. Court of Claims. In this he says "While it may be difficult (if not impossible) to determine the number of sales lost to photocopying, the fact remains that each photocopy user is a potential subscriber or at least is a potential source of royalty income for licensed copying."Also, “Plaintiff need not prove actual damages to make out its case for infringement.”? Since any copying may be viewed as potential income, and since no actual damages have to be proved, this recommendation seems to indicate that any photocopying is an infringement and that there is no longer any fair use except in some very limited instances mentioned later in the report.

In light of the above, we feel that librarians greatly need some further protection than that offered by fair use in Section 107. We need a definite statement in the law that making a single copy to aid in teaching and research, and particularly in inter-library loan, is permissible and not subject to possible suit for this activity in behalf of the public good. To my knowledge, it has not been shown anywhere that this activity is harmful to the copyright proprietor and, as detailed above, may be of definite help to him.

In light of the above, we wish to request that the attached amendment be substituted for Section 108(d) in S. 1361. We believe this will provide the protection needed by librarians in their efforts to serve their various publics while allowing equally good protection to the owners of copyright.

In conclusion, may I say that I think I speak for all librarians that we intend to faithfully observe the provisions of whatever law is finally passed, both in letter and in spirit, but an undully restrictive law will make it impossible to serve the people of this country and aid in teaching and research to the maximum extent which is desirable for all.

It has been a pleasure to appear before you today and we anpreriate your genuine interest in the problems which copyright presents to libraries.

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 audio-visual work, made at the request of a user of the collections of the library or achives, 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 librarly 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).

Mr. BRENNAN. The next witness is on behalf of the Special Libraries Association, Dr. McKenna. You have been allocated 5 minutes.

Senator MCCLELLAN. All right. Doctor, have a seat.
Do you have a statement you wish to place in the record ?
Dr. MCKENNA. Yes, I have, sir.

Mr. Jack Ellenberger is with me. He is chairman of the association's copyright committee, in the event that you have any questions that I am not able to answer.

Senator MCCLELLAN. All right. You may proceed sir.
Your statement will be printed in the record.

1 U.S. Court of Claims. The Williams & Wilkins Company v. the United States. Report of the Commissioner to the Court, February 16, 1972, pp. 16–17.

STATEMENT OF DR. FRANK E. MCKENNA, EXECUTIVE DIRECTOR,

SPECIAL LIBRARIES ASSOCIATION; ACCOMPANIED BY J. S. ELLENBERGER, LIBRARIAN, COVINGTON & BURLING, AND CHAIRMAN OF THE SPECIAL LIBRARIES ASSOCIATION COPYRIGHT COMMITTEE

Dr. MCKENNA. I wish to present the position of the Special Libraries Association with respect to the provisions of S. 1361 as they relate to library photocopying and interlibrary loan in lieu of photocopies. The policy position as adopted by the association's board of directors in January 1973 is one which seeks to reach an intermediate position of accommodation between the seemingly irreconcilable positions of publishers and literary authors on the one side, and the positions of some parts of the library and educational communities on the other.

Special Libraries Association, with 8,000 members, is the second largest library, and information-oriented organization in the United States. It is estimated that there are more than 10,000 special libraries in the United States. The concept of special libraries or, in better words, specialized libraries is not well known among the general public or even in some segments of the library community itself. The interests and activities of specialized libraries are described briefly in the document submitted and in the annexed brochure. SLA is an association of individuals and organizations with educational, scientific, and technical interests in library and information science and technology, especially as these are applied in the selection, recording, retrieval, and effective utilization of man's knowledge for the general welfare and the advancement of mankind.

Our original emphasis on special subjects has been replaced more and more by the concept of specialized information services for a specialized clientele. The specialized clients are frequently the employees of our parent organizations. Thus the special library may be an intermediary between the actual user and the larger research libraries as represented by the two associations who have testified before me.

SLA is organized in 25 divisions representing broad fields of spe. cialization ranging alphabetically from advertising to urban affairs.

The association is organized in 44 regional chapters ranging geographically from Hawaii across the continental United States, plus two chapters in Canada, and a European chapter.

Let me mention here that the association is in its own right a publisher of three periodicals and a number of books each year. Therefore, the association has its own interests as a publisher to conserve its sales income and royalty income.

SLA and its individual members would prefer continuation of the long-recognized concept that the preparation of a single copy constitutes fair use. But the association also recognizes that there may be some validity in the claims of publishers of periodicals that they may have some loss of income due to photocopying from a periodical issue that is still available in print. If the publication is out of print, that is, if a publisher has not maintained his stock in-print, it is dif. ficult to see how there can be any lost income.

Further, the slow delivery demonstrated almost daily by publishers to fulfill an order for a single in-print issue is totally unacceptable to the needs of our specialized users who most often are required to make management decisions, research decisions.

20-344-73-8

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