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"doing research on a specialized field.” It would appear that many corporate collections will qualify, or can be made to do so with little effort or burden.
In a similar vein, there is no effective restriction on the "users" entitled to receive unauthorized reproductions under the “user-request" exemption. Any "user of the collections” of the institution qualifies, including users making their request "through another library or archives.” As inter-library affiliation and “information networks" grow, the way is paved for single-copy purchase to satisfy public requirements.
Section 108 (d) (1) does require that "the library or archives has had no notice that the [requested] copy would le used for any purpose other than private study, scholarship or research." This does not impose any effective limitation on the nature of the user. Since there is no requirement that the library make any inquiry as to the purposes for which the copy is to be used, the condition is met by silence and is meaningless. Similarly, there is no limitation to any type of curricular or systematic instructional base for the private study. Again, the condition is rendered meaningless. Also, it is not clear that it is the "study, scholarship or research” of the requesting user which is to be served. We do not believe that the word "private" negates the possibility of even single-copy photocopying for group or successive uses. 10
(v) Section 108 is not restricted to the reproduction of portions or excerpts of works; entire works may be reproduced without consent or compensation.
Nor is Section 108 entirely clear with respect to the manner of permitted reproduction (e.g., microform, recording, light and laser techniques, etc.). Thus, while the archival exemptions of Section 108 (b) and (c) refer to "copies" and "phonorecords” duplicated in "facsimile” form, the user-request exemption of paragraph (d) applies only to "copies" and does not limit itself to "facsimile" reproduction.
Nor does Section 108 generally restrict the nature or subject matter of works subject to reproduction. All types of unpublished works are subject to archival reproduction for purposes of preservation, security or deposit; and all types of published works are subject to reproduction for purposes of replacement. The "user-request" exemption of Section 108(d) is generally limited to textual books, periodicals and sound recordings; however, there is no limitation on the subject matter of qualifying books, periodicals, and recordings. Thus, novels, plays, poetry, textbooks, technical publications, encyclopedias and reference works, abstracts, etc. are all subject to partial or entire reproduction under the same standards. 11
Section 108(d) does refer to the reproduction and distribution of “no more than one copy or phonorecord" of a work. However, paragraph (f) makes it clear that this does not preclude multiple reproduction of the same work except where the library "is aware or has substantial reason to believe" that it is engaging in "related" or "concerted' activity. Experience in various areas of law has amply demonstrated the difficulty of imputing knowledge as a basis of liability. Moreover, in many cases there may be no reason for libraries to suspect concerted activity, particularly since they have no duty of inquiry. To a great extent paragraph (f) is an asknowledgment that Section 108 condones on-demand publishing of works by persons other than the copyright proprietor.
(vi) In a number of respects, Section 108 is poorly drafted in such manner as to create the potential for unfortunate interpretation or application. For example: The ability of a library to engage in unauthorized reproduction is consistently referred to as a "right of reproduction and distribtuion" [$ 108 (b) (c) & (d) (1)]. This will invite the courts to resolve issues regarding library photocopying by the traditional judicial practice of "balancing competing rights" (herein, "rights" of proprietors and libraries) ; on the contrary we believe that such issues should be resolved by strict construction of limitations on the rights of copyright owners.
$ 108(a) (1) requires that the library's “reproduction or distribution" be without purpose of commercial advantage. Where distribution as well as reproduction are involved, such as under the “user-request" exemption or interlibrary application of the archival reproduction exemptions, both reproduction and distribution should be without such purpose.
10 Nor do we believe the sec. 108(d) (2) condition that the "copy become the property of the user" to bar such uses.
11 As indicated earlier, we do not believe the reference to the "private study, scholarship or research" purpose of the user to be an effective limitation on users. For similar reasons. we do not believe it offers any meaningful restriction on the nature or subject matter of reproducible works.
$ 108 (a), preceding sub-paragraphs (1) and (2), uses the phrase "and if." The "and" is, at the least, superfluous; and more significantly, it may create doubt as to the cumulative nature of Section 108.
The foregoing are merely intended as examples of poor draftsmanship having potential substantive effect on the principles embodied in the Section. As noted earlier, we urge that such principles themselves be subjected to examination and evaluation.
IV. CONCLUSION Title II of the Senate Revision Bill would establish a “National Commission on New Technological Uses of Copyrighted Works.” One of the stated purposes of the Commission is to "study and compile data on (1) the reproduction and use of copyrighted works ... by various forms of machine reproduction ..." 13 It is surprising that provisions for library copying which will seriously impair proprietary rights would be considered without the proper investigation which the Senate itself called for in appending title II to the Revision Bill.
Senator McCLELLAN. Very well.
Mr. BRENNAN. The Association of American University Presses. You have been allocated 5 minutes.
Senator MCCLELLAN. All right.
STATEMENT OF ARTHUR J. ROSENTHAL, CHAIRMAN, COMMITTEE
ON COPYRIGHT, ASSOCIATION OF AMERICAN UNIVERSITY PRESSES, INC.; ACCOMPANIED BY JOHN B. PUTNAM, EXECUTIVE DIRECTOR, ASSOCIATION OF AMERICAN UNIVERSITY PRESSES, INC.
Mr. ROSENTHAL. I am Arthur J. Rosenthal, director of the Harvard University Press. I represent the Association of American University Presses in my capacity as chairman of that organization's Committee on Copyright. I do not speak for Harvard University.
With me on my right is Mr. Sanford C. Thatcher, social science editor of Princeton University Press, a member of our Copyright Committee and on my left, Mr. John B. Putnam. Mr. Putnam is executive director of the association.
The 64 university presses of the country are, I believe, in a fortunate position in helping to assess where the public interest lies in the problem you are studying this morning. We live in the world of the librarian. In Cambridge, my press, for example, is surrounded by no less than 89 Harvard libraries.
Our day-to-day work is almost exclusively with scholars and educators; yet, the necessity to protect each scholarly book and journal we publish is as real for us as it is for the most commercial of commercial publishers.
I hope that this special perspective will cause our testimony to be without any note of special pleading and will be regarded as cooperative and flexible by our library and educational colleagues.
In a very real sense, the university press bears a primary responsibility for dissemination of scholarship in this country; although their (lollar volume is low, our members publish nearly half of the nonfiction books addressed to a scholarly audience that are issued each year.
12 S. 644, title II, sec. 201 (b) (1) (B).
If the orderly reporting of such research is to continue, the medium through which it occurs must be protected, and the author's claim to the copyright of his own work must be safeguarded. Toward this end, our suggested rewording of section 107 is an attempt at precision in the critical area of fair use. We believe that the present vagueness of this section could be construed as an invitation to unlimited photocopying of copyrighted material and that our suggested rewording gives added structure to the meaning of this section.
Senator MCCLELLAN. Do you have any proposed language ?
Mr. ROSENTHAL. I do. I have been skipping fairly rapidly, Mr. Chairman.
Senator McCLELLAN. Is it in your prepared statement ?
Mr. THATCHER. Mr. Chairman, in our prepared statement we have referred in a general way to the threat to nonprofit publishing we perceive in passage of a bill amended in other ways than we propose, but in these supplementary remarks, I should like to direct particular attention to the plight of the one form of such publishing that is apt to be most endangered by the photocopying privileges sought by educators and librarians—the publication of scholarly journals, in which university presses happen to be heavily engaged (collectively publishing 280 journals).
There is no single medium more responsible for the advancement of knowledge and the dissemination of information than the scholarly journal. Its contribution is perhaps most conspicuous in the natural sciences where the rate of progress and the collaborative nature of the enterprise make the production of books by individual authors the ex(eptional, rather than the normal, form of publication. But its prominence in the natural sciences should not obscure the vital role the scholarly journal plays also in the humanities and social sciences. There, too, although it is more often the outstanding book that establishes a scholar's reputation than a series of articles, most such books could never have been written but for the essential groundwork that had been laid previously by dozens of articles on aspects of the topic treated. Take a look at the bibliography of practically any university press book, and you will immediately realize the truth of this assertion. The truly original work of scholarship, like the revolutionary discovery in science, is a rare phenomenon.
Yet for all their universally recognized value to the advancement of scholarship/indeed, their indispensable contribution-scholarly journals seldom pay their own way through income received from subscriptions and advertising, at least for a very long time after publication is initiated and sometimes never. A case in point is World Politics, a leading journal in the field of international relations that my press publishes at Princeton : it began to break even only after 9 vears of publication at a loss. The situation is such that many journals have to be subsidized or supported in other ways by professional associations or research institutions, whose own funds for publication are usually quite limited. Outside help from other sources is difficult to find. Foundations and Government agencies, which have over the years been very generous in providing funds for the scholar's research activities, have traditionally shied away from extending that support
to its logical conclusion by assisting the journals that publish the results of his research.
It is no solution to sell the journal at a price that will insure its economic viability, however high the price may have to be. For, unlike a book, which as a more or less unified treatment of a sing'e subject can be sold even at a high price to those individuals who have a special professional interest in it, a journal typically provides a general forum for the discussion of a range of diverse issues within a broad field of inquiry, not all of which are likely to be of interest to the scholar who subscribes to it; hence, raising the price of the subscription is apt to make the alternative of photocopying those articles of particular interest to the professional relatively more attractive than continuing his subscription.
And here is the rub, as far as publishers of specialized journals are concerned. For as the cost of printing and publishing inexorably rise, and the charges for photo reproduction increasingly become cheaper, the journal publisher finds himself unable to pass on the higher costs to the consumer, who at some point on the scale will prefer photocopying to subscribing. The final result, if carried to its logical end, of course is self-defeating: the erosion of the journal's subscription list will sooner or later compel the publisher to cease publication of the journal altogether—and then the scholar will have nothing to copy, The publisher, the scholar, and the rest of us will all be poorer as a result.
It is this unhappy situation which I believe passage of S. 1361 with sections 107 and 108, unamended—or as amended in the ways educators and librarians desire-would bring even closer to reality than it already is because it would provide legal sanction for activities directly detrimental to the continued viability of scholarly journal publishing, activities which are now limited partly, I am sure, by the uncertainty which exists about their legal status. Allowing uncompensated use of copyrighted materials, as envisaged explicitly in the library amendment and the educational exemption, would ultimately dry up the very wellsprings of creative and productive scholarship which it is the concern of educators and librarians themselves to promote. They cannot have it both ways: eating their cake and having it, too.
What needs to be done, I want to suggest, is to find some practical means of implementing the principle that fairness most clearly dictates: that the user of copyrighted material, when the use involves more than fair use as traditionally understood, should bear some of the cost of its production. Photocopying is here to stay, and nothing that educators, librarians, or publishers decide is going to change that fact. Realistically, then, our efforts should be concentrated on devising workable mechanisms for linking up photocopying in support of original publication, rather than permitting it to remain a free rider, a parasitical form of publishing.
To explore alternative mechanisms, to see how the costs of producing and disseminating knowledge can be most equitably distributed among the parties concerned, users as well as producers, would be a fit task for the proposed National Commission to carry out, for only it will be in the position of judging impartially on the basis of information independently gathered what is in the best interest of the Nation as a whole.
In the meantime, it would seem best to proceed with caution, sa fe. guarding rights that have long been recognized as vital to the creation and distribution of knowledge and not giving in to immediate pressures however forcefully applied. We of the AAUP believe that our proposed amendments to sections 107 and 108 would insure the maximum protection to these rights while providing the incentive needed to promote serious investigation of schemes for licensing the reproduction of copyrighted materials—incentive hitherto lacking because of the expectation that something-namely, free photocopying--can be gotten for nothing. It is a position we hope you will support. Thank you.
Senator McCLELLAN. Very well. Thank you.
Now, we are going to recess until 1:30, and we urge those of you who are scheduled to testify this afternoon to be present so we will not have to wait on anyone.
[Whereupon, at 12:27 p.m., the committee recessed to reconvene the same day at 1:30 p.m.]
[The prepared statement of Arthur J. Rosenthal follows:]
STATEMENT OF ARTHUR J. RosENTHAL, ON BEHALF OF TIIE ASSOCIATION OF
AMERICAN UNIVERSITY PRESSES, INC., On S. 1361 I am Arthur J. Rosenthal, Director of Harvard U'niversity Press, a department of Harvard University engaged in not-for-profit publishing of scholarly books and journals. I represent the Association of American University Presses, Inc., in my capacity as Chairman of that organization's Committee on Copyright. With me are Mr. Sanford Thatcher, Social Science Editor of Princeton University Press and a member of AAUP's Copyright Committee, and Mr. John B. Putnam, Executive Director of the Association of American University Presses, Inc.
AAUP is a not-for-profit educational corporation operating in the interests of its membership, comprising 64 scholarly university publishers which are either departments of their respective parent institutions or wholly owned corporations thereof. All are engaged in the not-for-profit publication of works of scholarly distinction. Although AAUP's members together constitute something less than 5% of the dollar volume of books published in the United States, the titles they publish constitute a substantial portion-nearly half--of the serious non-fiction titles published for scholarly readers. This disproportionate balance of income to number of titles published is a measure of the commitment of the university Presses of this country to the dissemination of valuable but economically unprofitable scholarly books.
We appreciate this opportunity to present our views on certain specific aspects of S. 1361 and proposed amendments thereto, particularly since the university press community has not previously participated in the hearings relating to this important piece of legislation. Allow me, therefore, to state our position in brief:
1. We propose a substitute for section 107, as set forth in Exhibit A. 2. We oppose the proposed library amendment to section 108(d) (1). 3. We oppose the proposed "educational exemption" which will be discussed at a later session of these hearings.
4. We wish to associate ourselves, with certain reservations, with the position of the Association of American Publishers in respect of Section 108.
5. We support enactment of S. 1361, with sections 107 and 108 amended as indicated elsewhere in this testimony.
The university press in the United States has traditionally occupied a unique position between the worlds of commerce and scholarship. In fulfilling their responsibility to publish books by and for scholars that would not otherwise be published by reason of their limited marketability, the university presses of this country find themselves actively engaged in the world of business, buying goods and services, selling books and rights thereto, and otherwise fulfilling all the functions of a profit-oriented business, while at the same time maintaining a