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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,
Attorney for Amicus Curiae,

The American Chemical Society.
HANSON, O'BRIEN, BIRNEY,
STICKLE & BUTLER

Of Counsel.
Mr. BRENNAN. Ambassador Kenneth Keating.

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-
PANIED BY BELLA L LINDEN, COPYRIGHT COUNSEL
Mr. KEATING. Well, you are very kind, Mr. Chairman.

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

interests will suffer materially from the omission of specific photocopying provisions in section 108 at this time.

I do not want to leave this issue of photocopying without briefly offering one additional comment on the issue of fair use. It has been reported that a draft version of this subcommittee's report on a predecessor of S. 1361 states in part that “the making of a single copy of an article in a periodical or a short excerpt from a book would normally be regarded as fair use.” This has caused some persons to believe that the subcommittee intends a so-called single copy exemption to be applicable under all circumstances under the rubric of fair use.

I am convinced by the context of this statement that this subcommittee had no such intent and I urge that such an interpretation be expressly repudiated and that this language be clarified in the subcommittee's final report.

The inherent fallacy of the single-copy theory has been amply demonstrated in discussions before this subcommittee-after all, the publishers I represent here today are themselves engaged in publishing and selling one copy at a time to multiple users, as would the libraries under a photocopying exception and the retention of the draft language as a part of the legislative history of the revision bill may have unfortunate and unintended results.

I do not propose to enter into any further analysis of the provisions of section 108 of the Senate bill. I would call the subcommittee's attention, however, to a paper dated October 12, 1972, and prepared by the firm of Linden & Deutsch, copyright counsel to Harcourt Brace Jovanovich, Inc., and Macmillan, Inc. This paper is annexed as exhibit A to the statement which I have delivered to the committee.

I endorse the analysis set forth therein and request that it be accepted as part of my statement. Mr. Linden will certainly be available to the subcommittee to answer any questions concerning this exhibit.

[There followed the testimony of Ambassador Keating which appears preceding the testimony of Mrs. Bella Linden during the testimony taken relating to the general educatioinal exemption.]

Mr. KEATING. Mrs. Linden who is a far greater expert on the copyright laws than your witness, Mr. Chairman, is here to address herself to questions, either now or at the time when she testifies later this afternoon.

Senator MCCLELLAN. Very well. Any questions, Senator? Senator BURDICK. No. Senator McCLELLAN. Senator Fong, any questions? Senator Fong. No. Senator McCLELLAN. Thank you very much. Do you want to make any statement at this time? Mrs. LINDEN. No, Senator. I appreciate being heard this afternoon, when I am scheduled to be heard, and will make any comments at that time, if that is suitable.

Senator MCCLELLAN. All right.

Mr. LINDEN. Unless you wish for me to make one brief comment on the photocopying issue per se.

Senator McCLELLAN. All right.

Mrs. LINDEN. I was particularly interested in Senator Burdick's and Senator Fong's inquiries with respect to the feasibility of compensating authors and publishers for photocopying, and specifically with respect to the inquiries about that little boy who wants to photocopy one page.

The system--the concept of the educational market is one that suggests the product is prepared for use by students, researchers, adult students, by education, research and science generally. The system of compensation under the older technology to book publishers and magazine publishers was so well established that it caused no controversy at all. The new technology does present problems. They are not insurmountable.

I will refer this afternoon, when I am afforded the opportunity, to the Committee on Scientific and Technological Information under the aegis of the Federal Council for Science and Technology, which I have had the honor and pleasure of participating in.

It is abundantly clear that the very technology that makes photocopying necessary, desirable, feasible, and economically less costly than subscribing to chemical journals, or any journals or perhaps, in the long run, even buying books and occupying bookshelves, space, with volumes that deteriorate, et cetera—that very technology has created and produced the answer to the problem it has caused.

It is feasible today under the present technology to monitor uses, to pay for uses. The Xerox Co. today, for one, has a system of monitoring pages reproduced by its Xerox machines. Certain of the devices that are capable of photocopying pages from books, not just loose pages, have a system whereby the machine itself monitors effectively whether a book page or loose piece of paper is photocopied.

I am certain that the National Commission, which you in your mature wisdom and knowledge of the legislative process have recommended in the proposed title II, can call upon the mathematicians, the scientists, and the hardware manufacturers who have the ability and the capacity to monitor uses, and a new system of compensation for photocopying uses can be made practical. With all due respect, I urge that it be left to the Commission to report to you so that appropriate action can be taken at that time.

Senator FONG. Mr. Chairman, I would like to commend our former colleague and Ambassador to India for his very excellent statement before this committee.

Mr. KEATING. Thank you.

Senator BURDICK. Could you submit to us sometime today or later a budget as to what one of these machines would cost and operation thereof?

Mrs. LINDEN. Senator Burdick, it does not require a separate machine. As a matter of

Senator BURDICK. I mean the whole setup from beginning to end.

Mrs. LINDEN. I was going to suggest this afternoon—I would be glad to refer to it now. I was chairman of a subpanel of the Committee on Scientific and Technical Information of the Federal Council for Science and Technology. This issue did arise before that subpanel and our report dealt with exactly that matter. I called the committee's chairman yesterday morning and asked whether I could refer to the material prior to its public release.

The coauthors of this report had as disparate backgrounds as Commissioner Mary Gardner Jones, of the FTC, and Dr. John Weil, who is in charge of information systems development for Honeywell and General Electric in their point project. Various interested administrative agencies, DOD, NASA, AEC, were also represented.

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