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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." 1 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 appreciate 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 (a)(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.
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.
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 specialization 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.
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.
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. Any questions, Senator Burdick? Senator BURDICK. No. Senator McCLELLAN. Staff would like to ask a question. 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 Joan 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 å 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 copy 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 pube 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). $ 115 (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 by 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 onportunity 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