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Four items must be emphasized. One, totally unacceptable, is the concept that has been proposed of a central agency to determine whether an original is still available with a report period of, say, 21 days. The information needs and expectations of management are such that delivery in excess of 24 to 48 hours is incompatible with today's research and management decision processes.
Two, as a starting point, one potential solution is a provision for the payment of a per-page royalty on photocopies of copyrighted works. Such an arrangement has precedence already in the proposed Copyright Act in section 111, relating to cable transmissions, and sections 114, and 115, and 116, relating to sound recordings. A royalty tribunal of the type proposed in chapter 8 of the copyright revision bill, but, of course, with a different membership, could assure that the per-page royalty rate is reasonable.
Three, any legislative proposal should assure that libraries are not required to separately identify and account for each photocopy which they prepare, or to determine the allocation of the royalties, or to distribute the royalties for which they may be liable among the copyright proprietors. Mr. BRENNAN. I am sorry, sir. Your time has expired. Senator McCLELLAN. We will extend your time a couple of minutes. Go ahead.
Dr. McKENNA. If payment of a cents-per-page charge is enacted, the beneficiaries of such charges must themselves establish the agency in an ASCAP-style operation.
And four, the legislation to be enacted must not prevent or penalize the preparation of a photocopy for or by specialized libraries. There will be immeasurable damage to the economy and the welfare of the Nation if such intent should be contained in the enacted version of the bill, or if such interpretation is possible after enactment of the law.
We are grateful for the opportunity to present our views to the committee.
Senator McCLELLAN. Thank you very much.
Mr. BRENNAN. Doctor, do you support the amendment that was presented to us earlier this morning by the two other library associations?
Dr. McKENNA. Well, I did not see the statement until this morning, so I cannot make a statement on behalf of Special Libraries Association.
Senator McCLELLAN. I would suggest you evaluate it and submit a statement regarding it.
Dr. McKENNA. I would be pleased to do that.
ASSOCIATION 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 inter-library 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
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 U.S. The concept of special libraries or—in better words—the concept of 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 this document 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.
Special Libraries Association was organized in 1909 to develop library and information resources for special segments of our communities which were not adequately served by public libraries or by libraries in educational institutions. At first the emphasis was on special subject coverage in each special library as it related to the interests and business of its parent organization, for example: sources of statistical data for both corporations and the agencies of the national government and state governments; business data for banks and investment firms; chemical information for the then developing chemical industry ; engineering information for the emerging complexes of engineering and construction companies, etc.
During the past 64 years—and with particular growing needs for rapid information delivery since World War II-specialized libraries and information centers have been established in all segments of our nation's affairs. They exist in for-profit enterprises and not-for-profit organizations, as well as in government agencies. Some are open to public use, and others have restricted access or are part of a for-profit organization. During this period of accelerated growth, the original emphasis on special subjects has been replaced more and more by the concept of specialized information services for a specialized clientele. An example of such a specialized information service for a specialized clientele is the Legislative Reference Service of the Library of Congress. Although the Library of Congress (as a whole) is often called a “national library," the entire Library of Congress itself is, perhaps, an outstanding example of a definition of service to a specialized clientele: The Congress of the United States of America.
The specialized clients are normally the employees of the parent organization. The specialized information services are based on the speedy availability of information, both for current projects and for management determination of decisions regarding future efforts of the parent organization. To these ends, the members of SLA include not only librarians, but also persons who are subject specialists—so that they can evaluate and screen out the irrelevant, the redundant and the too often useless portions of the voluminous published literature. The totality of the literature includes not only the publications of commercial publishers of copyrighted books and periodicals, but also the avalanche output of government agencies (often with security handling requirements) plus the parent organization's own internal corporate documents (with the obvious need to protect proprietary or competitive information).
As a parenthetical observation, it should be noted that the pioneering work in machine use for information storage and retrieval (now computerized) took place in specialized libraries and information centers in the 1940's and 1950's. Similarly, the need for miniaturization of the bulk of the literature in microforms occurred thru the influence of S.L.A.'s liaison with designers and manufacturers of microreading equipment.
Last, but not least, S.L.A. pioneered the concept of information networkslong before computers and other communication devices had been developed. S.L.A. has facilitated communications among its members through the Association's unique information network of Chapters and Divisions. Initiated more than 60 years ago, the network has been frequently updated in response to the needs of new informational requirements.
S.L.A. is organized in 25 Divisions which represent broad fields of specialization or information handling techniques. These fields range alphabetically from Advertising, Aerospace, and Biological Sciences thru Military Librarians, Museums, and Natural Resources, and on to Transportation, and Urban Affairs.
S.L.A. is also organized in 44 regional Chapters which range geographically from Hawaii across the continental United States (plus two Chapters in Canada) and on to a European Chapter (which encompasses geographically all the nonSocialist countries of Europe).
1 Annex. Special Library Sketchbook. S.L.A., N.Y. 1972, 45 p. Editors note, the document referred to may be found in the files of the Committee.
Special Libraries Association in its own right is a publisher of 3 periodicals and of an average of 6 books per year. Therefore the Association has its own interests as a publisher to conserve its sales income and royalty income. The Association's publications are needed by special groups, but they are in such areas of specialization that commercial publishers (or even vanity presses) would not touch them because of the small sales potential. Our subscription lists range from 11,000 as a high to 1,000 as a low. Our book sales average about 1,000 copies for each title with a range from 500 to our top category of “best sellers" at a level of about 3,000 copies sold per title.
Special Libraries Association and its individual members would prefer continuation of the long recognized concept that the preparation of a single cops constitutes "fair use.” The Association recognizes that there may be some validity in the claims of commercial publishers of periodicals that they may have some loss of income due to photocopying of one article from a periodical issue that is still available in-print. If the publication is out-of-print (that is, if the pub lisher has not maintained his stock in-print), it is difficult to conceive how a photocopy of out-of-print material can cause any loss of income to the publisher.
Further, the slow delivery by publishers to fulfill an order for a single in-print issue is totally unacceptable to the needs of our specialized users who are responsible for fast management decision. There is little question that it is an administrative impossibility to secure publisher permissions to permit interlibrary response within any reasonable time. Moreover, the costs and delays in seeking such permissions would be prohibitive. Four items must be emphasized :
(1) Totally unacceptable is the concept that has been proposed of an agency to determine whether an original is still available with a report period of, say, 21 days. The information needs and expectations of management are such that delivery in excess of 24 to 48 hours is incompatible with research and management decision processes.
(2) As a starting point, one potential solution is a provision for the payment of a per-page royalty on photocopies of copyrighted works. Such an arrangement has precedence already in the proposed Copyright Act in $ 111 (relating to cable transmissions), $ 114 (sound recordings), S 11.5 (phono records), and $ 116 (coin operated phono record players). A Royalty Tribunal of the type proposed in Chapter 8 of the Copyright Revision Bill, (but with a different membership composition) could assure that the per-page royalty rate is reasonable.
(3) Any legislative proposal should assure that libraries are not required to separately identify and account for each photocopy which they prepare, or to determine the allocation of the royalties, or to distribute the royalties for which they may be liable among the copyright proprietors. If payment of a "cents-per-page" charge is enacted, the beneficiaries of such charges (that is. the publishers) must themselves establish the agency for the collection and for the determination of pro rated payments to each publisher (in an ASCAPstyle operation). Specialized libraries (and their parent organizations) can probably afford an added "cents-per-page" charge. But they cannot afford the added costs of record keeping and bookkeeping to issue checks for small amounts to each one among the multitude of publishers.
(4) The legislation to be enacted must not prevent or penalize the preparation of a photocopy for or hy specialized libraries-particularly those in for-profit organizations. There will be immeasurable damage to the ecoomy and the welfare of the nation if such intent is contained in the enacted version of S. 1361, or if such interpretation is possible after enactment of the law.
The rapid transmission of man's knowledge either to not-for-profit or to forprofit organizations-must not be impeded by law.
Special Libraries Association is grateful to the Subcommittee for the opportunity to present our views. The Association will be pleased to submit additional comments in the future if such would be appropriate.
Mr. BRENNAN. The next witnesses is Mrs. Felter on behalf of the Medical
Library Association. Mrs. Felter, you have been allocated 5 minutes. STATEMENT OF JACQUELINE W. FELTER, DIRECTOR. MEDICAL
LIBRARY CENTER OF NEW YORK, ON BEHALF OF THE MEDICAL LIBRARY ASSOCIATION
Mrs. FELTER. I am Jacqueline W. Felter, director of the Medical Library Center of New York, a cooperative library service center
maintained by a consortium of medical school and hospital libraries in the Metropolitan New York area. I am also a past president of the Medical Library Association, currently a member of the association's Committee on Legislation, and frequently the association's representative at meetings of the Ad Hoc Committee on Copyright Law Revision.
It is a privilege to have the opportunity to express the viewpoint of our membership:
The Medical Library Association, founded in 1898, celebrated its 75th anniversary this year. Its total membership is 2,854, of which 781 are institutional members and 1,755 are individual voting members. The remaining members are students in the United States and institutions and individuals in Canada and overseas.
The libraries and librarians are located in all types of health service facilities; medical schools, hospitals, research institutes, pharmaceutical firms, and medical societies. All are dedicated to helping the improvement of the quality of health care and extending it to every person in our Nation.
We are very pleased to find in sections 107 and 108 of S. 1361 recognition of photoreproduction as fair use of copyrighted publications by libraries under various conditions and for various purposes. We believe, however, that strict interpretation of the technical language of section 108(d)(1) would present serious operational problems. My remarks pertain especially to the scientific periodical literature.
Specifically, the bill calls for determination, prior to supplying a copy of a single periodical article to one individual, that the article is not available. This provision unfairly places a heavy burden on the user and the librarian.
Supplies of back issues in publishers' warehouses are expendable, and, often by the time a user has identified in an indexing or abstracting service or in the bibliography of another publication an article pertinent to his research or to the illness of one of his patients, the supply of the journal issue in which it was published may be depleted. Then the user must canvas the authorized reproducing services, such as the reprint dealers and microform publishers, because the average user is not knowledgeable about these sources; the search often is a collaborative enterprise of user and librarian. If the librarian has not participated in the search for an unused copy, the burden of proof is on the user and the librarian must decide whether or not to
The clerical chore of determining the availability of an unused copy would take, at best, a number of days, and more probably a number of weeks, thus setting up a timelag between the user and the published information he needs. In the health sciences, especially in the practice of patient care, the time factor can be critical.
Medical educators may suffer from delay in obtaining the published periodical literature, for many are both teacher and practicing physician, and time is of the essence as they coordinate two careers.
In closing, I remind you that health scientists do not receive compensation for the journal articles they write. This medical literature is usually a byproduct of research sponsored by society. Health scientists freely exchange information at regional, national, international meetings. Publication of their findings is an extension of their altruism.
The Federal Government encourages these humanitarian endeavors with grants of funds for research, including the payment of page charges to publishers and other expenses incidental to publishing. In
addition, journals are often purchased with Federal funds in support of libraries.
The Association of Research Libraries and the American Library Association and others have proposed to the committee an amendment to section 108(d) of S. 1361. The language suggested for section 108 (d)(1) would eliminate the costly and time-consuming intermediate steps of determining the availability of an unused copy.
Therefore, on behalf of librarians who serve the health sciences, I respectfully request that the proposed amendment be incorporated in the bill, S. 1361. As has been pointed out, most of the developed countries of the world permit such "fair use" photocopy, and it is timely for our Nation to do the same.
Senator MCCLELLAN. Are the conditions that you submit here on page 4, comparable or identical to the amendment proposed by witnesses who have preceded you?
Mrs. FELTER. Yes.
Mrs. FELTER. I believe so. I'm not quite sure I understand your question.
Mr. BRENNAN. I think what the chairman is saying, do you support the amendment that was offered earlier this morning by the two libraries?
Mrs. FELTER. Yes, indeed, and most heartily.
Senator McCLELLAN. These conditions that you speak of here that would be provided for certain conditions are in accord with the proposed amendments submitted this morning by the other witnesses as I understand it?
Mrs. FELTER. Yes. We are particularly concerned with the technical language of 108 (d)(1).
Senator McCLELLAN. All right.
Senator BURDICK. Thank you for your testimony, but I see the same argument used against your amendment as against the proposed legis-lation. In your proposed amendment, as I said to the previous witness, it is on the basis of a reasonable investigation that a copy cannot readily be obtained. This is the same weakness that you referred to in the proposed legislation?
Mrs. FELTER. I am speaking particularly of the scientific periodical literature. It is not as easy to determine whether an unused copy is. available. As I pointed out, publishers do not retain an inexhaustible supply of back issues, and back issues are not listed in books, such as Dr. Low mentioned. These are single issues of periodicals. Therefore, it is almost an insurmountable clerical chore to determine whether an unused copy is available. Even a telephone call does not help, because the publisher's office may be in one city, whereas his warehouse may be many miles away. There is a communication gap.
Senator BURDICK. This is precisely the point I am making. But your amendment to correct the situation does the very same thing. Let me read it to you.
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