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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
.35, 00-100.00 $22.00 66.00 3.00
60.00 10.00 30.00 20.00 60.00 15.00
21.00 20.00 60.00 18.00 54.00 15.00
21.00 7.00 21.00 7.00 21.00 6.00
9. 00 12.00 36.00 9.00
5,087 3,789 5, 674 31,995 7, 247 7, 307 7, 345 27. 869
2, 305 15.000 12,000
Company and individual. 2 Universities 3 in excess of 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 be oblivious to the effects of these developments on the essential financial support needed to continue the publishing function which generates the basic materials.
The Society conducts research and experimentation on the use of computers and allied electronic devices for the handling and dissemination of scientific information. Based on our experience and observations of the work of others doing research in this area, we see that such developments are leading us toward systems where a single original work will be used to disseminate multiple copies as well as a variety of subcollections of information derived from the original work. In effect, we are in the process of enhancing the distribution of an authors works by replacing the capability of printed plates with the capability of electronic processing.
The American Chemical Society is actively engaged in a continuing program of development and study relative to convenient access by users, including photocopying and the use of computerized technology, in an effort to find solutions which are compatible with the best interests of both copyright producers and users. We are vigorously pursuing a long-standing program to provide interested persons with copies of materials copyrighted by the Society, quickly and at the lowest possible cost, and to license others to reproduce such materials. We are doing all this because we clearly understand the need of chemists for quick and ready access to our published chemical information, and desire to adapt to their service the advantages of new communications technology.
Although we have no figures to indicate precisely the volume of current uncontrolled copying in terms of subscription losses, it does appear that the amount of photocopying of chemical publications is considerably higher than in other fields of science. In a study of the copying of technical journals from the New York Public Library, five American Chemical Society journals appeared on the list of 22 most copied journals, and ranked, 2, 3, 5, 12, and 13, respectively. Bonn George S., "Science Technology Periodicals,” Library Journal, 88(5), 954-8, March 1, 1963. Later studies have shown similar results.
Accordingly, the Society reiterates its support of the plaintiff and of the Commissioner's Report and respectfully urges that this Honorable Court deny the defendant's position and uphold the plaintiff's petition and the judicially accepted concept of "fair use". Respectfully submitted,
ARTHUR B. HANSON,
The American Chemical Society.
Senator McCLELLAN. You are welcome, sir, and we appreciate your appearance before the committee, and we will listen to your words of wisdom.
STATEMENT OF AMBASSADOR KENNETH B. KEATING, HARCOURT
BRACE JOVANOVICH, INC., AND MACMILLAN, INC., ACCOM-
This is my last gasp as a lawyer for the present, but I am delighted to be heard, and also appreciate your calling me a little bit out of order, because I am tied up in a lot of things at the present time.
This statement which I make is submitted on behalf of Macmillan, Inc., and Harcourt Brace Jovanovich, Inc., two of the five largest American publishers. And I wish to emphasize, however, as I did in the copyright law revision hearings before a subcommittee of the House Judiciary Committee, back in 1965, that I really consider my appearance to be a form of extension of my public service. I firmly believe that the promulgation of a revised copyright act which fails to adequately preserve and foster authoriship and publishing would endanger vital national and public interests.
As I indicated, in 1965 I had the privilege of appearing before Subcommittee No. 3 of the Committee on the Judiciary of the House, at the very inception of the legislative stage of the program, I think, for the revision of the Copyright Act. There has been a lot of water over the dam since then, but that is my recollection.
In the ensuing years, much time and effort has been expended by members and staff of Congress and administrative agencies, by representatives of producers and users of intellectual and artistic works, by members of the copyright bar, and by other interested parties in the development of a revised copyright law which will be consistent with the constitutional premise on copyright in this new age of information technology. And I hope that I am participating now in the conclusory stages of that program.
May I take this opportunity in the first instance to applaud your committee's farsighted recommendation in providing for the establishment of a National Commission on New Technological Uses of Copyrighted Works under title II of S. 1361. Its proposed creation provides the necessary recognition that there are certain difficult and still developing issues of the relationship between copyright and the new technology which require thorough investigation rather than premature, and therefore, possibly injurious, solution through immediate legislation. I will have occasion to refer to that a little later again.
My statement will be directed toward two issues: (a) the treatment to be accorded photocopying under a revised copyright law, and (b) the question of a general educational exemption.
First, photocopying. As an outgrowth of the 1965 hearings in the House, in 1967 the House passed H.R. 2512, for general revision of the Copyright Act. Section 108 of the House act provided a limited exemption from copyright infringement in favor of nonprofit archival custodians. The exemption was restricted to the reproduction of unpublished works for purposes of preservation, security, or interarchive deposit. The propriety of unlicensed photocopying was otherwise left to the province of fair use, a flexible doctrine developed in the courts and codified in section 107 of the House act.
The version of the photcopying provision now before the Senate in section 108 of S. 1361 so extends the photocopying exemption that authors' and publishers' rights are eroded and in some areas, in practical effect, preempted. Specifically, section 108 of the Senate bill encompasses archival reproduction of published as well as unpublished, works for replacement purposes and, most significantly, allows both unpublished and published books and periodicals to be copied by libraries and archives at the request of a user of their collections.
Since all any user of a photocopying service may desire is one copy, and since each separate user would receive a separate copy of the same work, the end result, in the aggregate, would be the erosion of entire markets for certain books and periodicals and in many instances to make the publishing of a work simply uneconomical.
The effects of section 108 of the Senate bill on the interests of authors and publishers of books and periodicals are rather clear. As reprographic technology progresses, interlibrary affiliations grow and information transfer systems develop, educational and trade publishers are likely to find the economic realities of their businesses approaching prohibitiveness. Publishers of technical and reference works having small markets and modest profits to begin with will find the very func
tion of their works—that is, piecemeal reference to particular portions rather than cover-to-cover reading—and hence their markets usurped by what cannot be described as anything but competitive on-demand publishing. Publishers of texts and other educational works will lose incentive to revise works or restock out-of-print books.
Organizations engaged in back issue services and authorized reprint houses will find their investments and very existence in doubt. Publishers of technical journals, faced with increasing production costs but unable to raise subscription prices because such increases are likely to be met by canceled subscriptions and reliance of the former subscriber on photocopies must sooner or later simply stop publishing. These are not mere specters or dramatics. They are inexorable conclusions drawn from the private enterprise system of our economy and the progress of technology.
Now, although we oppose much of section 108 of S. 1361 that goes beyond the archival provision of the House act, we are not oblivious to the fact that reprographic devices are here to stay and may perform valuable functions in research and education. We believe, however, that the operation of such devices must be brought within the copyright system in such manner as to assure the rights of publishers and the economic viability of their ventures.
We believe, moreover, that the appropriate bases for such resolution already exist in S. 1361—namely, in the fair use provision of section 107 and in the creation of a National Commission on New Technological Uses of Copyrighted Works under title II, to which I referred. The doctrine of fair use is suited to the issue of free reproduction in a developing technology; the frequent objection by libraries to its asserted vagueness is not persuasive in view of the general language of legal rules governing many aspects of life and business and, indeed, in view of the general criteria of commercial advantage, reasonable effort, normal price, commonly known sources and satisfaction established in the proposed extension of section 108 itself.
If there is reason why a justified amount of unauthorized photocopying cannot be accommodated within the framework of fair use, it remains to be demonstrated. Similarly, if our fears of the effects of unlicensed photocopying extending beyond fair use are unfounded, this has yet to be shown. The proposed National Commission would be well suited to these inquiries and to the formulation of alternative procedures which will serve all interests concerned.
There is little justification for the creation of particular photocopying provisions in a bill which allocates to the Commission the specific authority to study and compile data on the ... the reproduction and use of copyrighted works ... by various forms of machine reproduction. ..." I am, of course, not unfamiliar with the use of compromise in the legislative process. I have been subject to that myself on occasion.
I am concerned, however, that a compromise solution to the issue of photocopying at this point is likely to have the effect of freezing potentially detrimental measures into our laws for years to come and to remove any impetus for thorough consideration of this issue by the proposed National Commission. I do not believe the obverse to be true. In view of the admission of all concerned that photocopying is a subject worthy of further consideration, and in light of the specific mandate of the National Commission, I do not believe that library and allied