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terested parties, AAP, with appropriate technical clarification, would support it also. We understand, however, that Section 108 in its present form is not acceptable either to the American Library Association or the Association of Research Libraries.
In an effort to reach a fair and reasonable solution, representatives of AAP and the Authors League initiated a series of meetings, to which you referred in your letter. Those attending, in addition to the Authors League and AAP, included representatives of ALA, ARL, the Association of American University Presses, Inc., American Business Press, Inc., of learned societies which publish many scientific and technical journals, and of industry-connected research libraries and information centers.
At the request of the library interests, the group confined its attention to library photocopying of scientific and technical journal articles. In September, 1972, acting upon a proposal by one of the library representatives, a consensus was reached that libraries should have the right to reproduce single copies of articles in such journals but only if copies are not available within a reasonable time and at a reasonable price from the publisher or his authorized reproducing service.
An amendment to the effect was thereupon drafted by the lawyers in the group representing ALA, AAP and the Authors League. Before any of the other groups could take formal action, however, ALA and ARL flatly rejected the draft amendment without identifying in what respects the draft was not acceptable, without offering any changes for terms they might have found objectionable, and without offering any alternative solutions.
We understand that ALA and ARL are unilaterally proposing a "substitute amendment," 2 which we oppose as totally unsatisfactory. We sincerely regret that ALA and ARL apparently have abandoned efforts to achieve a consensus with other interested parties on the library photocopying issue and, instead, have chosen to pursue an adversary position before Congress.
Under these circumstances we respectfully suggest when the Copyright Revision Bill is reintroduced in the 93rd Congress.
A. that apart from technical drafting changes, Section 108 in S. 644 remain unchanged or, in the alternative,
B. that Section 108 in S. 644 be deleted and Section 108 of H.R. 2512 be inserted in its place, and that Section 117 of S. 644 be revised by appropriate amendment so that the remaining library photocopying issues be left for solution by the courts and the proposed National Commission on New Technological Uses of Copyrighted Works.
Section 107 of S. 644, as we understand it, is intended to state without change the principles of fair use as they exist today and, if that understanding of the legislative intent is correct, we support the section.
As always, we support your efforts to bring about the prompt enactment of a sound copyright revision bill. Sincerely,
CHARLES H. LIEB, Copyright Counsel, Association of American Publishers, Inc.
ANNEX TO STATEMENT OF AAP ON LIBRARY PHOTOCOPYING, S. 1361
SUGGESTED CHANGES TO SECTION 108
The phrase "the right” or “the rights" of reproduction and duplication is improperly used in these subsections. The Section should not refer to "rights." Rather, as indicated in the title of Section 108, and of Section 107 as well, the permitted copying and distribution are "limitations" on the exclusive rights of the owner of the copyright. These subsections therefore should state that the kinds of reproduction and distribution referred to therein "are not infringements of copyright" and the reference to "rights" should be eliminated.
Section 108 (c), (d)
2 ARL Newsletter, No. 58, November 14, 1972.
The "availability" portions of 108 (c) and (d) should be amended to read
"* * * that an unused copy cannot be obtained at a reasonable price from commonly know trade sources in the United States or the publisher or other copyright owner or an authorized reproducing service."
Section 108(e) (3)—Lines 16 and 17—should be changed to read "* * * assumed at any time by the library or archives with respect to any copy or phonorecord of a work in its collections."
A new subdivision should be added, possibly as subdivision (3) of Section 108(a) to require that the appropriate copyright notice be included in any copy or phonorecord made in Section 108.
Section 108 and perhaps Section 107 as well should specifically state that the reproduction of copies of consumable works such as work book exercises, problems, or standardized tests and answer sheets and of works used for purpose of compilation are not permitted fair uses.
Senator McCLELLAN. Call the next witness.
STATEMENT OF ROBERT A. SALTZSTEIN, GENERAL COUNSEL, ON
BEHALF OF THE AMERICAN BUSINESS PRESS, INC.
Mr. SALTZSTEIN. Mr. Chairman, my name is Robert Saltzstein. I am general counsel of American Business Press.
We have submitted a statement for the record, and I would like to enter that into the record.
I suppose one of the advantages of coming toward the end of a very interesting discussion is perhaps we can help come to a solution, which is going to be the purpose of my presentation.
Senator McCLELLAN. Very well. Your statement will be printed in full in the record. If you wish to highlight it, you may do so, or supplement it in any way you like. Mr. SALTZSTEIN. Thank you, Mr. Chairman.
Basically American Business Press is composed of approximately 500 specialized business publications, many of whom are scientific and technical publications. Whatever the American Chemical Society and the American Association for University Presses said we would have to endorse fully because if copyrights are vital to their viability, they are extremely vital to the viability of the taxpaying organizations which make up the American Business Press. Now matched with our concern for proprietary rights, which is basically the right of copyright, which has really caused the business press, the scientific business press in this country to grow, is our concern for the dissemination of information.
We can't stop the inexorable onrush of photocopying, but we are obligated to do what we can to cut down its invasion on our ability, if you please, to keep on disseminating this information.
Now we think that the statute before you, the bill before you, has the seeds of an effective compromise in it. Section 107, we think is a fine proviso and should stay in the law. It is a statutory rendition of the fair use concept. Section 108, we have reservations about. If that could be referred to the committee or the commission set up under title 2, perhaps some of the electronic marvels of the age as were very ably postulated this morning, could be fully explored. But in the meantime, that part of the bill, section 504(c) (2) which preserves and safeguards librarians from suit, is a protection providing all that is necessary. It appears on page 55 and in our opinion is all that is needed pending the study which title 2 provides for.
We hope that will be the solution. We necessarily oppose the library amendment, and we hope that our proposal will be of assistance to the committee in its determination.
Thank you, Mr. Chairman.
Senator MCCLELLAN. It is a very difficult thing involved here. I am trying to understand and sympathize with the viewpoints of all of you with respect to your point that, if you don't have customers, of course, you can't produce.
Mr. SALTZSTEIN. That is our problem.
Senator McCLELLAN. That is your problem, but at the same time, people go to their libraries to get service. If they go to the library and they want to make a copy of a page, if it costs 10 cents or 5 cents or whatever, well, I just don't see how this is going to work. I don't see the economics in it. I don't see how your clients or the authors will really gain anything ultimately.
Mr. SALTZSTEIN. Mr. Chairman, I think one of the problems is, as it's been explained to me, that our publishers hire editorial staffs and they do original research, they ferret out this information, and they disseminate it. Now, if it is going to be at the mercy of a photocopying machine in a library—and granted, there are all kinds of hedges in this—but where does it stop? Maybe we just won't be able to publish any more.
Senator McCLELLAN. We have to try to find some middle ground so the publishers and authors will be protected, that is to say, will be able to get a return adequate to carry on the work before us and also so that the material gets further disseminated, gets further distributed. So you have to make some concessions. Mr. SALTZSTEIN. I understand.
Senator McCLELLAN. Has to make some concessions to the reader too.
Mr. SALTZSTEIN. Well, I think Williams & Wilkins has made a very, very careful contribution in bringing this action. They are not members of our association, but we certainly commend what they have done in bringing this to the fore. Now, perhaps out of it will come a copyright tribunal payment system.
Senator McCLELLAN. I will commend them, too, if we can find an answer to this.
Mr. SALTZSTEIN. Well, we hope the Commission can find it.
STATEMENT OF ROBERT A, SALTZSTEIN, GENERAL COUNSEL, AMERICAN BUSINESS
Mr. Chairman, members of the Committee: The American Business Press is made up of leading American and international technical, professional, trade and financial publications disseminated to special industries. There are approximately 500 member publications in the association, all published by tax-paying companies.
Typical of publications which belong to the association, are Oil and Gas Journal--Tulsa ; Pulp and Paper-San Franscisco; Progressive Architecture Stamford ; Feedstuffs—Minneapolis ; Construction News-Little Rock ; Machine Design-Cleveland ; Electronic Engineering-Philadelphia ; Aviation Week-New York; and Professional Builder—Chicago.
The average circulation of ABP members is approximately 50,000 copies per issue. They have these characteristics in common :
(1) They are circulated to a highly specialized readership which relies on their content for news, research, and other articles of a professional, scientific, and industrial nature concerning the industry or science in which the reader of the publication is engaged.
(2) They require and contain original editorial research, specifically edited for this highly specialized, relatively small circulation universe.
The editorial content ferreted out, researched, and then published in these journals has been protected by the existing copyright law. Fair use, as it has developed in the courts, has enabled a publisher, at the very outset of a new industry, to make an investment in a publication edited for that industry, with the knowledge that for the investment made he would have relative security as to the circulation of that publication, with redress if there was subsequent copyright infringement. The growth of many industries would have been slower had technical and trade journals not been able to maintain their circulations secure against copyright piracy. We welcome the inclusion of Section 107 in the legislation before you.
A publisher frequently carries his publication at a loss for years before a profit is earned. By way of example: In the noise-pollution field, a small public cation published in Cleveland, Sound and Vibration, was started in 1966 and turned the financial corner only in 1972. If its material had been subject to publication without effective copyright protection, its continuing contribution to noise-pollution control might well have been choked off, if the publication failed.
Admittedly, there is no effective way to police photocopying within a company. However, one of the largest American corporations had instituted a policy of digesting various business publications, then circulating the digest by way of photocopy machine. This served to cut down the circulation of technical publications distributed in that company. The company soon realized that its employees' need to know, and the need for others in industry to know what that particular company was doing in product development and research activities, would be impaired if the circulation of business publications would be so reduced as to lower the quality of editorial content, or alternatively, to reduce advertising availability. Fortunately, this company rescinded its digestphotocopy arrangement, respects copyrights, and encourages its employees to subscribe to as many specialized business publications as possible.
It is for this reason that the American Business Press urges the Committee to delete Section 108 at this time; we urge that this section be referred for study to the National Commission to be established under Title II of S. 1361.
The Commission will be in a position to expertly analyze the following situations :
(1) When an article is out of print, what is the obligation of a library to determine whether copies are available, and what is the obligation of the publisher to supply that article?
(2) How bona fide is the claim that technical journals are out-of-print and unavailable to libraries from publishers upon request?
In our opinion, the incidence is rare when a publisher denies access to reproduction upon request. Frequently, reprint permission with appropriate public acknowledgment of the original source of the article is given without charge.
A system which permits one copy to be made could be a system which could permit more than one copy to be made in any given time frame and is, in our opinion, impossible of enforcement. Once the copyright protection established in the Constitution is eroded by law, fair use may become impossible to determine, and copyrights could be meaningless.
We respectfully submit that there has been no demonstration of the need for Section 108 or for the American Library Association Amendment. That Amendment would permit partial photocopying rights without investigation of any kind and goes even further than Section 108. We believe that before this fracturing of copyrights is enacted into law, that there should be a much clearer demonstration of need than has heretofore been produced. This must be a fit subject for determination by the Title II Commission.
An additional reason for deleting Section 108 and rejecting the Library amendment pending the study is the inclusion of Section 504 (c) (2) which provides :
“In a case where an instructor, librarian, or archivist in a non-profit educational institution, library, or archives, who infringed by reproducing a copyright work in copies or phonorecords, sustains the burden of proving that he believed and had reasonable grounds for believing that the reproduction was a fair use
under Section 107, the Court in its discretion may remit statutory damages in whole or in part."
This provision is protective of libraries and librarians and still preserves fair use. Nothing more is needed pending the study.
While the Commission is making its determination, we can assure the Committee that the tax-paying business press of this country, as represented by the American Business Press, will promptly comply with any reasonable request received from any library for any publication, or part thereof, in print or out of print. An appropriate reproduction charge may be assessed; frequently, there is no charge. But reservation of the right to charge is necessary to preserve the integrity of what a copyright is all about.
As producers of software so capable of reproduction by photocopy machine, or of mashing into computer systems, we are most seriously concerned with any change in the copyright law, whether it be Section 108, the proposed American Library Association-American Research Library Amendment.
We believe that prior to legislative enactment, the Title II Commission should evaluate the need for these provisions. If that is demonstrated to be actual, then the effect of a loosening of the copyright laws will have upon the origination of necessary scientific and technical information should be considered by that Commission and reported to Congress.
The American Business Press has participated in a series of meetings under different and friendly auspices, all of which have attempted to resolve the dispute which has arisen since the Williams and Wilkins decision. We would like to take this opportunity to commend Williams and Wilkins, not a member of our association incidentally, for the initiative they have taken before the Court of Claims.
We stand ready to work out any reasonable settlement with those who desire the right to photocopy without benefit of copyright, whether it be one copy or many copies. Imposition by statute of a provision granting the right to photocopy, copyright not withstanding, however restricted, can only impede settlement negotiations and could prejudge a situation which may not be as serious as it is made out to be.
We appreciate this opportunity to appear before you. We urge you to defer action on Section 108 and the library amendment pending such time as a reasonable solution can be arrived at without congressional action, or until such time as either the Title II Commission or the parties themselves come to an agreement which congressional action could then indeed solidify.
Mr. BRONNAN. Mr. Chairman, speaking of the Williams and Wilkins Co., we come now to Williams and Wilkins.
Senator McCLELLAN. Williams and Wilkins come around. Very well. Mr. BRENNAN. Would you identify yourselves?
STATEMENT OF MRS. ANDREA ALBRECHT, DIRECTOR OF MARKET
ING RESEARCH, ON BEHALF OF WILLIAMS AND WILKINS CO.; ACCOMPANIED BY ARTHUR GREENBAUM, COUNSEL
Mrs. ALBRECHT. Mrs. Andrea Albrecht, director of marketing research of the Williams & Wilkins Co., accompanied by Mr. Arthur Greenbaum, our counsel, of the firm of Cowan, Liebowitz, and Latman.
Senator McCLELLAN. Do you want to place your statement in the record or would you like to read it?
Mrs. ALBRECHT. Yes; we would like to place our complete oral statement in the record.
Senator McCLELLAN. Let it be placed in the record. You may highlight it as you wish.
Mrs. ALBRECHT. And our complete written statement, which we submitted on July 25, we would like that also to be placed in the record.
Senator McCLELLAN. All right.