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I am going back to Williston High School again. Suppose a senior is doing a paper on chemistry and he goes to the library in Williston, and he finds a copy of your journal, and he wants to take it home and type it. He wants one page.
Is it your contention this morning that, unless he pays for it, he should not have it!
Dr. Cairns. This would seem to me, perhaps, to come pretty close to a very limited fair use, but my contention is that if there is a change in ownership involved in the transfer of copied material that, thereby, there has to be some accounting. Since it is only a matter of a few cents, I think it would not stand in the way in the process of communication in this particular instance.
Senator BURDICK. Your answer, then, is yes. You would not let him have it until he paid for it.
Dr. CAIRNS. Yes.
The mechanisms by which these pennies per page could be collected are severalfold. One of them that we have heard about in the Special Libraries Association was the idea of a royalties tribunal, which in turn would, through the various collection mechanisms and various distribution mechanisms, distribute the few cents per page in the aggregate to the owners of the copyright. The library chore of recording could perhaps be done mechanically. It could be done by sampling. There are many techniques. So that the students involved, while he might, indeed, have to pay a few cents, or he might not have to pay a few cents, depending on how that library chose to operate. The mechanisms for collection and payment would not need to be donors.
Senator BURDICK. Well, I gather from your testimony that you would not permit the young man to have this material without paying for it.
Now, to get to the next question. In the libraries across the country, in my sort of country, you could not possibly set up a mechanism for distributing the money. Suppose you get this one page out of this book and pay 5 cents for it. Why, the postage to give you that 5 cents by mail would be more than that. And to keep a running account and to be keeping books would be impossible for small libraries.
The question is, either he gets it or he does not get it. It is a practical matter.
Mr. WEIL. No. There are mechanisms. Right now, that student if he wishes to use a machine for himself drops into it a dime or a quarter. So that the collection mechanism could be part of that dime or quarter which he puts in. How that money is distributed right now-most of it goes to the vendor who supplies the machine.
But there are methods that I mentioned-sampling; the Coden that was mentioned that would identify the journal is a method, also which could be electronically counted by the machine at the time of copy. The student would not need to be bothered. Right now, he must dron a dime or a quarter into the machine.
Senator BURDICK. You mean to say that the library at Williston has electronics, has got money for stuff like that?
Dr. CAIRNS. May I ask Counsel to answer?
Mr. HANSON. Senator, believe it or not, it does. And if it does not, it should have. I would suggest to you that, obviously, in any approach to this, you have to use common sense and practicality.
Senator BURDICK. That is right.
Mr. Hanson. The American Chemical Society is not interested and I do not believe any other publisher is—in picking up the single page that a student is going to use. But remember, your premise was that he was going to take this out and copy it himself at home.
Senator BURDICK. No, no.
Mr. Hanson. If he sat down in the library and wanted to take whatever notes he wanted to out of that page, that is obviously a fair use under the settled law of the land.
I would suggest that what we are speaking to here is the practice that has arisen in the last few years of heavy copying by certain major metropolitan libraries, for the most part, which have made inroads into the publisher's ability to meet his costs, to make his material available. And I think this is really the problem that the committee must address.
Senator BURDICK. I understand the problem.
But in my hypothetical question, I did not have the young man taking the periodical out. I had him take the photostatic part home.
Dr. Cairns. There are other ways to meet your question other than an educational exemption, which I believe you were speaking to. I do not believe that we can have or afford an educational exemption, because we, in producing journals, are an essential link in the educational process. Therefore, we must have some means of recovery.
It might be through licensing through the library to allow them to do this practice that you described, and it would be at their behest. And this, as a matter of fact, was at issue in the Williams and Wilkins case, of which we are a party in having submitted an amicus curiae brief. We are normally on the side of education and science, because this is our charter.
We are also interested in preserving the function of continued dissemination of scientific and chemical information, so we must come to a practical determination, just as you people must.
Senator McClellan. Let your brief that you submitted be filed and be marked as an exhibit to your testimony. Or would you like to have it printed in the record ?
Dr. Cairns. Yes, we have submitted the full testimony for the record, and we also would ask the privilege, if you are agreeable, to let other scientific societies submit statements for the written record in the period of time to August 10.
Senator McCLELLAN. That is agreeable. They may do so.
Senator Fong. Are the articles in your magazine originally written by vour people?
Dr. Cairns. These are articles that are originally written by scientists and engineers throughout the world.
Senator Fong. For your magazine?
Dr. Cairns. No. They are written in the first instance to record the works of the scientists and engineers. They are submitted for acceptance or rejection, or editing by the editors of our prospective periodicals, and they may or may not be accepted.
Senator Fong. Do you pay them for this?
Dr. Cairns. We do not. As a matter of fact, in most of the scholarly journals of which I have spoken, there is a system of page charges, in which the author pays up to $50 a page to help absorb the cost of publication. And this is recognized as a policy by the U.S. Government,
as enunciated by the Federal Council on Science and Technology, I think, about 1963, that all these Federal grants can be used for the purpose of these charges—payment of page charges on their scientific works into nonprofit journals.
Senator Fong. So actually, you have not paid for the article?
Dr. Cairns. We have not paid anything for the article. In fact, we usually get a page charge for publishing.
Senator Fong. Yes, and he pays you for it, certainly—for the publication?
Dr. Cairns. He pays page charges at a rate of $50 a page for the scholarly journals.
Senator Fong. You say, since you publish it, the man who copies that should pay you or pay him?
Dr. Cairns. The man who publishes—who recopies—our publication should pay us so that we can be compensated for the costs of creating the first copy, before the overrun cost of thousands of copies, which we also have.
Senator Fong. So, then, you would enter into an agreement with the writer of the article.
Dr. Cairns. The writer of the article invariably puts the copyright with the American Chemical Society.
Senator Fong. I see.
Now, would you consider an exemption? Say, a little boy who takes the book home and copies, say, two or three pages of it, or he makes two or three xerox copies. Would you exempt such a child from paying any fee?
Dr. CAIRNS. No, the exemptions that you exemplify by this particular case would represent the educational exemption, and the educational process is a part of what we contribute to in our dissemination of scientific and technical literature. We are a part of the educational process, and if we are to continue to exist, we must be compensated the way anyone else does.
Senator Fong. So you think that this little boy should pay for that?
Dr. CAIRNS. He must, if we are not to have a general educational exemption.
Senator Fong. Now, who is going to do the collecting?
Dr. Cairns. I would say that the person who is in the control point in this case would probably be the librarian.
Senator Fong. How would she know?
Dr. CAIRNS. I do not think she would if he took the book home. It would be a little difficult to police. But that does not excuse not having a law to say that this is not legal.
Senator Fong. So, if he asks the librarian to Xerox the copy, then you want the librarian to collect the money?
Dr. CAIRNS. I see no other rational way to do this.
Senator Fong. Suppose in 1 month there is only one page that is copied, and you charge only cents for that copying. You expect the librarian to put all her time to collect that money for you and send it back to you?
Dr. Cairns. No. I would say that we would only be interested in substantial payments, and there might be a clause which would rule out anything below $1 or $10. We are talking here in terms of millions of dollars.
Senator Fong. This is what I am asking where is the exemption? Would you say that we charge those who make a profit out of it, and we do not charge those who do not make a profit of it? Where is the exemption !
Dr. Cairns. There is no profit here. This is only compensation for costs that are incurred in creating the journal.
Senator Fong. You say many of these are metropolitan libraries? Dr. Cairns. They have photocopying devices, yes.
Senator Fong. And they have photocopying devices and they print thousands of copies and disseminate it. And these are the people you want to stop?
Dr. Cairns. No, I do not want to stop them. I wish it to continue. Senator Fong. Stop them from copying without paying?
Dr. Cairns. I wish to receive enough compensation so that, in proportion to the total number of copies circulated, that these Xerox copies carry their share of the composition costs.
Senator Fong. These people—these Xerox copies of your publications—are they making a profit?
Dr. Cairns. I do not think the concept of profit is applicable here, because they are, in the first place, nonprofit organizations. But that does not save the American Chemical Society, which is a nonprofit organization, from going broke if all of our works are copied.
Senator Fong. We are trying to get at the facts. We do not know the facts. We are asking you as to whether they—are they making a profit, or are they not making a profit?
Dr. CAIRNS. No.
Senator Fong. So most of the people who copy your works do not make a profit. Is that correct?
Dr. CAIRNS. That is correct.
Senator Fong. So you say that these people who copy your works should pay for them?
Dr. Cairns. They should pay the portion of the composition costs which their copying represents, in terms of that number of copies to the total number of copies.
Senator Fong. Then you would not exempt any part of it at all ?
Dr. Cairns. That would be about right, with the possible exception of the subscriber making copies for his own use for convenience.
Senator Fong. Thank you, sir.
Mr. KENYON. May I enter a simple factual correction? You asked the subscription circulation of the Journal of the American Chemical Society. I stated it was between 16,000 and 17,000. That was true last year.
The circulation on journals is falling, and as of June 30, 1973, it was 14,726.
Senator McCLELLAN. Very well.
AMERICAN CHEMICAL SOCIETY Mr. Chairman and members of the Subcommittee: My name is Robert W. Cairns. I am the Executive Director of the American Chemical Society and, with the authorization of its Board of Directors, I appear before you today to present the Society's statement. I h? rent 37 years in industry and retired as Vice President of Hercules Incorporated on July 1, 1971 to accept the position of Deputy Assistant Secretary of Commerce for Science and Technology. I resigned from that position on December 1, 1972, on acceptance of my present appointment. Accompanying me today are Dr. Richard L. Kenyon, Director of the Public Affairs and Communication Division, Mr. Ben H. Weil, Chairman of the Society's Committee on Coyprights, and Dr. Stephen T. Quigley of the Department of Chemistry and Public Affairs of the American Chemical Society, and Arthur B. Hanson, General Counsel of the Society.
We appreciate being given this opportunity to comment on the certain features of the Copyright Revision Bill, S. 1361. The issues addressed by this legislation are both fundamental to the formulation of national science policy, and of vital significance with respect to the ability of our society to resolve many of the problems which confront it. These issues have been under discussion for some time now by the Committee on Copyrights of the Board of Directors and Council of the American Chemical Society, as well as by other similar scientific societies, and a general consensus on them has been under development. This consensus has been developed in the context that the protection of copyrighted material will “promote the Progress of Science and Useful Arts”, as specified in Article 1, Section 8, Clause 8 of the Constitution of the United States. The viewpoint which we attempt to express is that of the chemical scientific and technological community, as represented by the American Chemical Society.
The American Chemical Society is incorporated by the Federal Congress as a non-profit, membership, scientific, educational society composed of chemists and chemical engineers, and is exempt from the payment of federal income taxes under Section 501(c)(3) of the Internal Revenue Code of 1954, as amended.
The American Chemical Society consists of more than 107,000 such above described members. Its Federal Charter was granted by an Act of the Congress in Public Law No. 358, 75th Congress, Chapter 762, 1st Session, H.R. 7709, signed into law by President Franklin D. Roosevelt on August 25, 1937, to become effective from the first day of January, 1938.
Section 2 of the Act is as follows:
“Sec. 2. That the objects of the incorporation shall be to encourage in the broadest and most liberal manner the advancement of chemistry in all its branches; the promotion research in chemical science and industry ; the improvement of the qualifications and usefulness of chemists through high standards of professional ethics, education, and attainments; the increase and diffusion of chemical knowledge; and by its meetings, professional contacts, reports, pa pers, discussions, and publications, to promote scientific interests and inquiry, thereby fostering public welfare and education, aiding the development of our country's industries, and adding to the material prosperity and happiness of our people.”
Its Federal Incorporation replaced a New York State Charter, which had been effective since November 9, 1877.
One of the principal objects of the Society, as set forth in its Charter, is the dissemination of chemical knowledge through its publications program. The budget for the Society for the year 1973 exceeds $36,000,000 of which more than $29,000,000 is devoted to its publications program.
The Society's publication program now includes twenty journals, largely scholarly journals that contains reports of original research from such fields as medicinal chemistry, biochemistry, and agricultural and food chemistry, but also a weekly newsmagazine designed to keep chemists and chemical engineers abreast of the latest developments affecting their science and related industries. In addition, the Society is the publisher of Chemical Abstracts, one of the world's most comprehensive abstracting and indexing services. The funds to support these publications are derived chiefly from subscriptions.
The journals and other published writings of the Society serve a very important function, namely : they accomplish the increase and diffusion of chemical knowledge from basic science to applied technology. In so doing, they must generate revenue, without which the Society could not support and continue its publications program in furtherance of its Congressional charter to serve the science and technology of chemistry. The protection of copyright has proved an essential factor in the growth and development of the scientific-publishing program of the Society.
The twenty periodical publications of the Societr produce more than 41.000 pages a year and subscriptions in 1972 totaled 330,000. Chemical Abstracts annually produces more than 150.000 nages which go to 5000-plus subscribers. Its abstracts number in excess of 380 000 yearly and its documents indexed in excess of 410,000. The single greatest source of income for all ACS publications is subscription revenue.