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Our report was adopted without dissent. And our report clearly indicates the feasibility of monitoring uses and recording payment. The technology is there, exists, and will not cause a prohibitive addition to the per page cost of photocopying that is presently paid by users and libraries, adverted to this morning, and paid to the Xerox companies, to Honeywell to IBM, etc.

So is feasible. It is practical, and work has been done.
Senator BURDICK. I would still like a budget.

Mrs. LINDEN. To the extent that the information is currently available. I will be delighted to submit it for August 10th.

[Exhibit A referred to by Ambassador Keating follows:]

EXIIIBIT A

LIBRARY COPYING UNDER DOMESTIC COPYRIGHT LAW REVISION

I. THE LIBRARY COPYING PROVISION AS PASSED BY THE HOUSE OF REPRESENTATIVES

On April 11, 1967 the House of Representatives passed H.R. 2512 (90th Cong., 1st Sess.), an Act for General Revision of the Copyright Law. While Section 107 of this Act codified the general doctrine of "fair use" as it has been developed by the courts, Section 108 established a specific "limitation" on the rights of copyright owners in a carefully circumscribed area of library copying: $ 108. Limitations on exclusive rights: Reproduction of works in archival

collections. Notwithstanding the provisions of Section 106 [delineating the exclusive rights of copyright owners), it is not an infringement of copyright for a nonprofit institution, having archival custody over collections of manuscripts, documents, or other unpublished works of value to scholarly research, to reproduce, without any purpose of direct or indirect commercial advantage, any such work in its collections in facsimile copies or phonorecords for purposes of preservation and security. or for deposit for research use in any other such institution.

Section 108 was thus limited to (i) facsimile reproduction of unpublished works by certain nonprofit institutions, for (ii) their own limited purposes.

In approving this version of Section 108, the House Committee on the Judiciary stated that it did “not favor special fair use provisions dealing with the problems of library photocopying” other than under the circumstances abovedescribed. H.R. Rep. N. 83 (90th Cong., 1st Sess.) at 36 & 37. Similar sentiments were expressed by the Register of Copyrights. Thus, although the Copyright Office Preliminary Draft of the Revision Bill allowed libraries to make and supply single copies of periodical articles, or copies of entire published works considered to be unavailable from trade sources, upon request, the Reg. ister subsequently “became convinced that the provision would be a mistake” 1 in view of rapidly changing information technology.

The limited version of Section 108 set forth in H.R. 2512 is the only specific "library copying" provision to have received the formal approval of a Congressional Committee or either house of Congress.

II. THE LIBRARY COPYING PROVISION PRESENTLY BEFORE THE SENATE The Copyright Revision Bill presently before the Senate Subcommittee on Patents, Trademarks and Copyrights [S. 644 (92nd Cong., 1st Sess.)], includes a much more extensive “library copying" provision in its version of Section 108. In brief, the “limitations" on the exclusive rights of copyright owners are extended to include (i) duplication of published works by certain public or semi-public institutions, at (ii) the request of users of the institution's collections.

This extension of the specific "library copying exemption" was expressly disapproved by Resolution 38 of the Section of Patent, Trademark and Copyright Lau of the American Bar Association in 1970:

Resolved, that the Section of Patent, Trademark and Copyright Law disapproves in principle enactment of severe limits on the exclusive rights of copyright proprietors with respect to reproduction and distribution of copyright works by libraries and archives.

1 Supplementary Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law at 26 (May 1965).

2 The current Senate version of section 108 also extends the limitation of H.R. 2512 to include duplication of published works for the purpose of replacing "damaged, deteriorating. lost, or stolen' copies of works under certain circumstances.

Specifically, the Section of Patent, Trademark and Copyright Law disapproves Section 108 of the December 10, 1969 Committee Print of S. 543 (McClellan91st Congress, First Session).

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III. ANALYSIS OF SECTION 108 OF S. 644 A. Synopsis.--Section 108 of the Copyright Law Revision Bill now before the Senate Subcommittee adopts the provision of the House Act allowing library and archival copying of unpublished works for the purposes of preservation, security or deposit in other institutions. However, the Senate Bill extends the library copying exemption to allow unlicensed facsimile reproduction of published works for the purposes of replacing deteriorating, lost or stolen copies if the institution has "after reasonable effort determined that an unused replacement cannot be obtained at a normal price” from certain sources.

The Senate Bill further extends the exemption to include unlicensed reproduction of published or unpublished books and periodicals by libraries and archives at the request of a user of the institution's collections. This “user request" exemption is subject to the conditions that (a) the user must have "established to the satisfaction” of the institution that an unused copy cannot be obtained "at a normal price” from certain sources; (b) the reproduction must become the property of the requesting user and the institution must have had “no notice that copy would be used for any purpose other than private study, scholarship or research,” and (c) the institution issues certain "warning” notices.

B. Considerations. At this point our purpose is not to re-draft or rehabilitate the library copying provisions of S. 644. Our purpose is merely to isolate certain aspects of the proposed Senate version of Section 108 in order to allow examination of their impact on the business operations of interested parties. In this context, we believe the following considerations to be of principal significance :

(i) Section 108 condones free reproduction. It is not a “compulsory licensing" provision; no compensation to copyright owners-whether by statute, regulation, or otherwisemis contemplated. Similarly, the Section does not expressly require accurate reproduction, original source credit, or use of copyright notice on the reproductions.

(ii) The provision allowing reproduction of published works for purposes of replacement and the "user request" exemption require some determination that unused copies are not obtainable. However, unavailability in fact is not required: in the case of replacement the library need only conclude that such is the case "after a reasonable effort,” and in the case of copies made at a user's request the library need only be "satisfied," by the user, that such is the case. In the latter case, at least, there is no express requirement that the library's determination be in good faith, nor is there any requirement that the requesting user make any actual effort to locate a copy, or give actual evidence thereof.

Moreover, Section 108 provides no meaningful standards with respect to availability. In this respect we can only raise questions as to what circumstances may be sufficient to render a copy available or unavailable: may inability to secure a copy within “X" number of days render the copy unavailable; are there geographic limits on availability or the library's or user's efforts (is a work not available at the neighborhood bookstore unobtainable ; how many bookstores should be checked; what types of sources other than bookstores are relevant sources for certain works?) ; does a new version of a work satisfy the availability conditions with respect to prior editions ; should a work be considered available if it is included in a compilation or collection otherwise not needed by the library or user?

Even where Section 108 does attempt to give some definition of availability, it remains unclear or troublesome in operation. Thus, availability at announced or catalog prices does not preclude unlicensed copying ; the library may still determine that the price is not "normal.” “ To preclude copying, the work must be available from "commonly known" trade sources ; specialized sources for works of more esoteric disciplines may not qualify. Indeed, it is not clear to whom the source is to be "commonly known"—the library, the requesting user, the

3 Section 108 of the Dec. 10, 1969. Committee Print of S. 543 is identical to the version of section 108 currently set forth in S. 644.

This provision of S. 644 extends to all walks other than musical, pictorial, graphic, cinematographic, or audio visual works.

5 We do not believe that any of these requirements will necessarily be deemed implicit in the requirement of "facsimile" reproduction of section 108 (b) and (c). In any event, the “user request" exemption of sec. 108(d) is not limited to "facsimile" reproductions.

& Sec. 108(c), (d) (1).

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publisher, the "trade," or the courts? Certain sources are clearly insufficient, namely, those outside the United States. Thus, to preclude unlicensed copying, arrangements must be made for domestic availability of foreign publications, in any language, no matter how limited their normal market.

Similarly, the provision does not appear to have considered the particular problems raised by its application to back issues. Although a number of organizations have made great investments of time and cost in locating, accumulating, and storing back issues in specialized fields and servicing their clients, their efforts and investment are adversely affected if not completely ignored: (a) we doubt that many libraries will accurately estimate the “normality" of back-issue prices; and (b) one may question whether such suppliers will comprise "commonlyknown” trade sources, particularly where inter-library requests may involve libraries which have had no knowledge or dealings with such specialized sources.

Availability on library loan or for in-library use also appears insufficient to preclude unlicensed copying at the request of a user. The references to “trade sources," "price," and "unused copy," and the fact that to make a copy the library must have a copy, or have access to one under inter-library affliation, all seem to imply that a user may request and receive a copy of a work no matter how accessible such work may otherwise be for his use under loan, and regardless of the degree of inconvenience, if any, caused by such use being restricted to a certain location or for a certain time, or his having to wait for such access. In short, a user may even request and receive an unlicensed reproduction of all or part of a work which is available to him from his local library for home or business use for extended periods of time.

"Trade sources” are defined to include "authorized reproducing services”; "reprint houses" are presumably included but are not expressly mentioned.

There are no excuses for unavailability. Thus a work may be withdrawn by a publisher for revision, while his potential market is sapped by duplication of prior editions.

(iii) Section 108 does not require initial recourse to the copyright proprietor. That the proprietor may be willing to consent to the desired reproduction, even on “reasonable" terms, is rendered irrelevant since his permission need not be first requested. (The previously-discussed "availability" conditions do require some initial degree of unsuccessful recourse to trade sources for copies. Authorproprietors would generally not be considered "trade sources"; under various circumstances, this may also be true of publisher-proprietors. In any event, we believe that the condition of unabiliability which allows reproduction will be met where existing copies are considered unobtainable. Thus, a request for permission to create a new copy is not a condition precedent to free copying under the proposed law.)

Similarly, although Section 108 is apparently not intended to interfere with certain contractual arrangements between libraries and copyright owners, there is no incentive to libraries to enter into such arrangements on even "reasonable" terms. Furthermore, the relevant subsection refers only to obligations assumed when the library “obtained [the] copy for its collections." Thus, agreements which may be entered into with respect to earlier-published works, such as "blanket" licenses covering a publisher's catalogue or subscribers, may be ignored by libraries if less favorable than the proposed law. Even with respect to new works, it may be questioned whether the language of the relevant sub-paragraph clearly indicates that more "difficult” contractual undertakings will prevail over contrary provisions of Section 108.

(iv) The “libraries" and "archives" entitled to invoke the exemptions of Section 108 are not restricted to nonprofit institutions. So long as the particular act of reproduction in question is without purpose of "direct or indirect commercial advantage" [8 (a) (1)], even profit-making institutions may avail themselves of the provision. We do not believe that the quoted language was intended, or will be construed, to preclude the operation of photoduplication services by for-profit institutions in order to make their overall, profit-generating, services more attractive or competitive.

Nor are such "libraries" and "archives" limited to public institutions. The only restriction on the nature of the exempt institutions is the requirement that its collections be open to at least persons, other than affiliates of the institution,

* See, 108 (c), (d) (1).
8 Sec. 644, sec. 108(e) (3): “Nothing in this section . . . in any way affects

.. any contractual obligations assumed by the library or archives when it obtained a copy or phonorecord of the work for its collection."

In this respect, the Senate version of sec. 108 goes beyond the House act even with respect to archival reproduction of unpublished works.

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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 be 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.

(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 repro. duction are involved, such as under the "user-request" exemption or inter: library 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 ..." 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.
Call the next witness.

Mr. BRENNAN. The Association of American University Presses. You have been allocated 5 minutes.

Senator McCLELLAN. All right.
Mr. BRENNAN. Would you identify yourself, Mr. Rosenthal?

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 dollar 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).

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