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As is indicated by the objectives of the American Chemical Society, we believe that the effective dissemination of scientific and technical information is critical to the development, not only of the society and economy of the U.S.A., but also of modern society worldwide.
Scholarly journals are the major instruments for disseminaton and recording of scientific and technical information. These journals are expensive to produce. If the costs are not supported financially by those who make use of them they cannot continue. There is no adequate substitute in sight.
The scholarly scientific or technical journal is more than merely a repository of information. The scientific paper is the block with which is built our understanding of the workings of the world around us. In his papers, each scientist records his important findings for the permaanent record. His successors then have that knowledge precisely recorded and readily available as a base from which they may start. So the process continues in a step-by-step fashion from scientific generation to scientific generation, each worker having available to him or her the totality of the knowledge developed up to that time. Each scientist stands upon the shoulders of his predecessors.
But this analogy of simple physical structure is inadequate, for at least of equal importance is the continuous refinement that takes place. Before new knowledge is added to the record, it is reviewed, criticized and edited by authoritative scholars; then, once published, it is available in the record for continued use, criticism, and refinement. New findings make possible the revelation of weaknesses in the earlier arguments and conclusions, so that as the structure of scientific knowledge is built higher it is also made stronger by the elimination of flaws. While it has been said that mankind is doomed to repeat its mistakes, the system of scientific recording in journals is designed to prevent the repetition of such mistakes and to avoid building upon erroneous conclusions. The scholarly journal record is the instrument for insuring this refining process.
In addition, journal papers form an important part of the basis upon which a scientists' standing among his peers is judged. For this reason, scientific scholars are willing to give their time and effort to help produce these evaluated records and are also willing to leave the management of the copyright on their papers in the hands of the scientific societies. These scholars are rarely concerned with private income from their published papers, but they are vitally concerned with the preservation of the intrinsic value of the scientific publishing system.
Publishing costs have risen and are rising continuously, making the continuation of the scientific-journal system increasingly difficult. This has been recognized by the U.S. Government in acknowledging the philosophy that scientific-research work is not complete until its results are published, and in establishing a policy which makes it proper that money may be used from federal support of research projects to help to pay the cost of journal publication. It is this policy which provides most of the funds for paying page charges, charges originally designed to pay the cost of bringing the research journal through the editing, composition, and other production steps, up to the point of being ready to print. However, publishing costs are now so high that these page charges no longer pay even for these initial parts of the publishing process. American Chemical Society records in 1972 show that page charges supported one-third or more of those costs for fewer than 30% of ACS jorunals.
Publishing cost must be shared by the users. If these users are allowed, without payment to the journal, to make or to receive from others copies of the journal papers they may wish to read, it is not likely they will be willing to pay for subscriptions to these journals. If and as free photocopying of journals proceeds, the number of subscribers will shrink, and subscription prices will have to rise. The reduction of subscription income may continue to the point of financial destruction of these journals.
The problems of the commercial publishers of many good scientific journals are even more severe, because these publishers do not have the moderate assistance of page charges.
The doctrine of fair use, developed judicially but not legislatively, has long been useful to the scholar, for it has allowed him to make excerpts to a limited extent for purposes of the files used in his research. However, the modern technology of reprography has offered such mechanical efficiency and capacity for copying that it is presently endangering the protection given the foundations of the scholarly journal by copyright. "Excerpts," instead of being notes, sentences, or paragraphs, are being interpreted to mean full scientific papers, the aforementioned building blocks.
As the copyrighted journal system developed, it was agreed long ago that the scholar should be allowed to hand-copy excerpts for use as background informa
tion. As a further step, authors became accustomed to ordering reprints of their papers to send to their colleagues to put into their files or briefcases as a means of assuring a good record of the progress of work in the field concerned. This was followed, 20-30 years ago, by some minor use of the old “Photostat” machine. While that process strained a little the proprieties of copyright, it was fairly generally agreed that the mechanics of the practice were such as to help the research scientist while difficult and costly enough not to undermine the basic structure of the journal system.
However, in the past decade the techniques of reprography have advanced to such an extent that third parties, human and mechanical, are beginning to be involved in a substantial way. It now is practical to build what amounts to a private library through rapid copying of virtually anything the scholar thinks he might like to have at hand. While this process has obvious personal advantages, it is now being done extensively and increasingly without these scholarsor the libraries which copy for them-making any contribution to the cost of developing and maintaining the basic information system that makes it possible. Even conservative projections of the development of reprographic techniques within the next decade make it clear that the economic self-destruction of the system within the next decade is a real possibility. Overly permissive legislation could make this destruction a certainty.
Use of a journal by an individual for extracting from it with his own hands, by hand-copying the material specifically needed and directly applicable to his research, is one thing. A practice in which an agent, human or mechanical, acts as copier for an individual or group of individuals wishing to have readily available, without cost, copies of extensive material more or less directly related to his or their studies and research, is quite a different matter. The latter is certainly beyond justification on the mere grounds that technology has made it convenient, nor that the purposes are socially beneficial.
While I am not aware of documented direct proof that photocopying is seriously eroding the subscriptions to scholarly journals, the decline in paid circulation of those journals in recent years is reported by many publishing societies. During the past three years, ending December 31, 1972, the paid circulation of the Journal of the American Chemical Society has declined from 19,419 to 16,139 and as of June 30, 1973 had declined further to 14,726 ; that of the Journal of Organic Chemistry had declined from 10,557 to 9,217 and as of June 30, 1973 had declined further to 8,575; and that of the Journal of Physical Chemistry from 6,448 to 5,459 and as of June 30, 1973 declined further to 4,997. Others have declined comparably.
Documented evidence of the increase in photocopying is found in "A Study of the Characteristics, Costs, and Magnitude of Inter Library Loans in Academic Libraries,” published in 1972 by the Association of Research Libraries. There we find that in 1969–70 the material from periodicals sent out in response to requests for winterlibrary loans” filled by the academic libraries surveyed was 83.2 percent in photocopy form as compared with 15.2 percent in original form and 1.4 percent in microform.
In that same report the volume of interlibrary loan activities from academic libraries is traced. It grew from 859,000 requests received by academic lending libraries in 1965–66 to 1,754,000 in 1969–70, and is projected to reach 2,646,000 in 1974-75.
These data give some indication of the trends in use made of the published literature without contribution of any share of the very considerable cost of evaluating, organizing, and publishing it.
No suggestion is intended here that the use of better means of dissemination should be prevented. What is urged is that such dissemination should not be allowed without its sharing the costs of the basic steps that make such dissemination possible.
An understanding of these facts and a willingness to share these costs is indicated in a statement recently approved by the Board of the Special Libraries Association and published in its magaine, "Special Libraries" in March, 1973. The key section of this statement reads "... it would seem appropriate for SLA as an organization comprised of both private and public libraries to seek a rational legislative solution to photocopying problems which will reasonably satisfy the needs of libraries and their patrons and which will protect pubishers and authors.
As a starting point, one potential solution might be the making of 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), Section 114 (relating to sound recordings), Section 115 (relating to phonograph records), and Section 116 (relating to coin-operated record players).
"A Royalty Tribual 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."
Recognition of the responsibility to pay for extensive copying of the literature recently has been given by the USSR, which for years has been copying scholarly journals without payment. In May, 1973, the USSR declared its adherence to the Universal Copyright Convention. Its representatives have approached the American Chemical Society, the American Institute of Physics, the Institute for Electrical and Electronic Engineers, and other publishing societies—as well as commercial publishers—both in the U.S. and abroad, to begin negotiations for the payment of royalties for such copying. To say the least, it would be surprising to find the USSR paying a fair share of the costs of publishing our scientific literature that it copies while the users in the U.S. do not.
It is desirable that use be made of modern technology in developing optimum dissemination. This technology includes the use of modern reprography, but as technology inherently includes economies the means of financial support of the system must be a part of its design. Therefore, photocopying should not be allowed under any circumstances unless an adequate means of control and payment is simultaneously developed to compensate publishers for their basic editorial and composition costs. Otherwise, “fair use" or library-photocopying loopholes, or any other exemptions from the copyright control for either profit or non-profit use, will ultimately destroy the viability of scientific and technical publications or other elements of information dissemination systems.
The copyright law is directed to the interest of the public welfare. It is not in the interest of the public welfare to modify the copyright law so as to allow the economic destruction of the scientific and technical information system.
In conclusion, I would like to bring to the Committee's attention the American Chemical Society's Amicus Curiae Brief filed in support of the Report of the Commissioner in The Williams & Wilkins Co. v. the United States case, now being decided in the United States Court of Claims. Since the Committee is well aware of this case, I will not comment further but will submit a copy of the Society's brief, which is consistent with my statement, for inclusion in the record. Enclosure.
UNITED STATES COURT OF CLAIMS
[NO. 73-68] The Williams & Wilkins Co., PLAINTIFF y. The United States, DEFENDANT
BRIEF ON BEHALF OF THE AMERICAN CHEMICAL SOCIETY, AS AMICUS CURIAE, IN
SUPPORT OF THE REPORT OF THE COMMISSIONER The American Chemical Society respectfully submits that compensation for the copying of copyrighted material pursuant to the Copyright Act of 1909 will "promote the Progress of Science and Useful Arts," as specified in Article I, Section 8, Clause 8 of the Constitution of the United States. Accordingly, the Society supports the position taken by the Report of the Commissioner as set forth in his Findings of Fact, Recommended Conclusions of Law and Opinion, bearing date of February 16, 1972.
THE INTEREST OF THE AMICUS
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.
As of October 30, 1972, the American Chemical Society consisted of more than 110,000 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 of 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, papers, 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.” (emphasis supplied)
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 are devoted to its publications program.
The Society's publication program now includes twenty journals varying from scholarly journals, containing reports of original research from such fields as medicinal chemistry, biochemistry, and agricultural and food chemistry, to 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 two important functions, namely: first, they accomplish the increase and diffusion of chemical knowledge and related purposes of the Society ; second, they 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 industry of chemistry. The protection of copyright has proved an important factor in the growth and development of the scientific-publishing program of the Society.
The Society's publications, accompanied by the periodicity of publication and the cost to subscribers, are as follows:
Periodicity of publication
Company and individual.
Note: Additionally, the Society publishes on a nonperiodical basis the following: Director of Members; Abstracts of Meeting Papers; Advances in Chemistry Series; Seidell's Solubilities of Inorganic and Organic Compounds; Specifications and Test Methods for Laboratory Compounds; Specifications and Test Methods for Laboratory Reagent Chemicals; Collective Indexes to Chemical Abstracts and Society Journals; Such other books, pamphlets, and reprints as may be authorized by the board of directors.
These twenty periodical publications of the Society produce more than 41,000 pages a year, and CHEMICAL ABSTRACTS produces more than 150,000 pages a year. Its abstracts number in excess of 380,000 and its documents indexed in excess of 410,000.
From the foregoing, it is obvious that the amicus has a deep and abiding interest in the outcome of this case. It should also be obvious why the amicus supports the position of the plaintiff in the case; it is abundantly clear that, in working toward the objective of the advancement of the science and technology of chemistry, the most effective possible dissemination of information is a primary requirement. In order to effect this, the American Chemical Society, operating as a not-for-profit society, works to build the best possible record of scientific knowledge related to chemistry and to find ways to get as effectively as possible, that knowledge into the hands of those who need and use it. On the one hand, there is the problem of cost per user, which we endeavor to maintain at a level which will not be a serious barrier. On the other hand, the expenses of doing this are very considerable and they must be met in full or else the system will begin to degenerate. If, through copying and distribution which brings no return at all to the American Chemical Society, this material is made available so that users need not subscribe to the publications, the process will lead to a reduction of paid circulation and a smaller base over which to distribute the costs, thus driving up the unit costs. Appreciable rises in cost would defeat efforts to maintain the objective of broad and effective dissemination.
The amicus believes that the actions of which the plaintiff complains have a deleterious effect on its objects as set forth above.
ARGUMENT Having carefully examined the Commissioner's Findings of Fact, Conclusions of Law, and Opinion, the plaintiff's brief, the defendant's brief and the briefs of all the amici, both pro and con, the American Chemical Society strongly supports the Commissioner's Report and the authorities cited therein. The Society likewise supports the position of the plaintiff as set forth in its brief and adopts the authorities cited therein.
The effort of the defendant to equate its copying procedures to the doctrine of "fair use" as set forth in the existing case law is legally indefensible. The proper place for such an argument is before the Congress.
The Court may take notice of the fact that an effort to attain an omnibus revision of the Copyright Law has been under way for the past seventeen years. This effort has been headed by Senator John L. McClellan's Senate Judiciary Subcommittee on Patents, Trademarks and Copyright and is set forth in S. 644 of the last session of Congress. The Society took a position on such legislation as early as May 5, 1967, when Dr. C. G. Overberger, the then president, expressed the Society's views in a written communication to that Subcommittee.
The position expressed then is still essentially the Society's position. During the intervening years, the Society has continuously reviewed the perplexing problems resulting from the growth of technology vis-a-vis copying in various forms and the expressed desire of some segments of the scientific community for freer access at little or no cost to individual users, with the view that this is their right in the name of research. It must be noted that this use, namely freedom to copy for individual users, as supported by the defendant's brief and epitomized by the National Library of Medicine's practices, is supported by the tax dollars of all the people of the United States without any concurrent legislative authority for same. This is inimical to our free enterprise system and to our system of checks and balances.
Now, as stated above, the Society has attempted to find a means of accommodating these conflicting viewpoints and it has offered the following to the Senate Subcommittee.
The doctrine of "fair use" is set out in Section 107 of the proposed legislation. Title II of the proposed legislation calls for the establishment of a National Commission for New Technological Uses of Copyrighted Works. The Society supports the establishment of this proposed Commission.
In light of the fact that other facets of the proposed legislation would appear to further limit the rights of a copyright proprietor and the fact that the amici supporting the defendant herein are actively lobbying for the position they support here, we are suggesting that no change be made as to "fair use" until the Commission is established and it has made a detailed, scientific study of this problem.
The American Chemical Society disseminates more scientific information in the field of chemistry than any other organization. Its accomplishments in this area have been recognized both by Congress and by other branches of government. Its investments are great from the standpoint of both manpower and dollars. We believe that our service program is a vital service which must be continued. The Society is deeply concerned, however, that the unauthorized use of materials under an increasingly liberalized "fair use" doctrine could impair or even destroy our ability to generate, publish, and disseminate such scientific information in the future. While the Society in no way seeks to hamper or restrict either the learning process or the use of technological developments and equipment needed to improve the exchange of information, it cannot