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and continue to offer to collaborate with the library associations to establish clarifying guidelines.

As to copying that would go beyond fair use and would not be permitted by the library copying provisions of section 108 as presently drafted, we have offered before and continue to offer cooperation with the library associations to establish workable clearance procedures.

There is no need, therefore, for the library amendment and we oppose its adoption.

Section 108 with the drafting changes which we have suggested goes as far toward compromise in statutory form as publishers can go. The section, from our point of view, is troublesome. With the library amendment, it would become intolerable.

Thank you for the opportunity to appear before you.
Senator McCLELLAN. Thank you very much.
[The prepared statement of W. Bradford Wiley follows:]

PREPARED STATEMENT ON S. 1361, IN BEHALF OF THE ASSOCIATION OF AMERICAN

PUBLISHERS, INC. I am W. Bradford Wiley, Chairman and Chief Executive of John Wiley & Sons, Inc., publishers. I appear in behalf of the Association of American Publishers, Inc. of which I was formerly Chairman and am now Chairman of its Copyright Committee. With me are Ross Sackett, President of Encyclopedia Britannica Educational Corporation, and present Chairman of AAP; Richard P. Sernett, Secretary and Chief Legal Officer of Scott, Foresman and Company, Vice Chairman of the AAP Copyright Committee; and Charles H. Lieb of the New York Bar, Copyright Counsel to AAP.

AAP is a trade association of book publishers in the United States. Its 260 member companies and subsidiaries are believed to produce 80% or more of the dollar volume of books published in the United States. Some of its members publish scientific and technical journals. Although most of its members are in the private sector, some are religious and educational not-for-profit organizations.

We are grateful for permission to testify at what we understand are limited hearings confined to specific issues, one of which, library photocopying, is the subject of the present discussion.

use.

AAP'S POSITION We stated our position on library photocopying in response to the Subcommittee's request in our letter of December 5, 1972 to Mr. Thomas C. Brennan, your Chief Counsel, a copy of which marked "Exhibit A” is attached. The library substitute amendment" to which we referred in that letter is, we beileve, the amendment to S. 1361 which the Association of Research Libraries and the American Library Association are presently supporting. The drafting changes to Section 108 of S. 1361 (then S. 644) which we suggested in that letter are those outlined in "Exhibit B” attached hereto.

Our position, in brief, is as follows: (1) We support Section 107 as a helpful statement of the principles of fair

(2) Although in some respects harmful to the interests of copyright proprietors. we support Section 108 but only with drafting changes as outlined in Exhibit B.

(3) We oppose the substitute for Section 108 (d) (1) requested by the library associations.

(4) We oppose the overlapping "limited educational exemption" amendment offered by the National Education Association Ad Hoc Committee on Copyright Law Revision which is to be discussed at a later session in these hearings.

(5) We support enactment of S. 1361 in its present form except for the drafting changes to Section 108 referred to above.

The membership of AAP, profit and not-for-profit alike, have a vital interest in protecting their publishing investments against unauthorized library photocopying or periodical articles and contributions to collective works. George D. Cary, then Register of Copyrights, succinctly stated the basis for our objection in a recent address. He said

"unlimited copying * * * could well so diminish sales that the journal publisher would have to suspend publication, or increase the cost of the journal in order to make up for the loss in subscriptions caused by the excessive copying." (A.S.I.S. Proceedings, Vol. 9, 1972, at 171.)

AAP does not dispute the need for libraries in given instances to make single photocopies of journal articles. It does dispute that the amendment offered by the library associations provides the proper method.

AAP'S OFFER TO ESTABISH FAIR USE GUIDELINES Much of what libraries copy they have the right to copy within the principles of fair use, which would be codified by Section 107. Concededly the line that marks the difference between fair and unfair use in a given case may be difficult to draw. Because we understand the predicament in which this places the librarian we have offered to cooperate with the library associations in establishing quantitative and qualitative guidelines which would eliminate much of the present uncertainty. So far, however, the library associations have not chosen to accept our offer.

GUARANTEED ACCESS TO THE USER

Much also of what libraries copy, clearly not fair use, would be permitted to copy under subsection (b), (c) and (d) of Section 108, both as presently drafted and as amended as suggested in our Exhibit B. These subsections would permit single copying not only for archival purposes but also for the requesting user if he cannot obtain the published work from the publisher or dealer or a reprint or photocopying from an authorized reproducing source. Thus, user access would be guaranteed to any work, whether in or out of print.

AAP'S OFFER TO ESTABLISII CLEARANCE PROCEDURES We share the view that we understand was stated in the Committee's draft of Report to accompany S. 543 (which was not issued) that the interest of the library community in satisfying existing needs of scholarship and research is adequately provided for in Sections 107 and 108 and that further innovations in reprography policy should await either agreement among the parties or the studies of the National Commission to be appointed under Title II. For our part, we, with the Authors League, members of the Association of American University Presses, several learned societies which publish journals, and the American Business Press, have offered to cooperate with library and other interests to establish workable voluntary arrangements to clear the photocopying of material that would exceed the limits imposed by Section 108 (cf Exhibit A).

The library associations (other than the Special Libraries Association which has recently announced its willingness to work out arrangements to assure access to library resource on reasonable terms) have rejected our proposal, and offer instead a substitute subsection 108(d) (1) which would permit not only the kinds of copying contemplated by Section 108 as presently drafted but also the copying of an entire article in a periodical issue or of an entire contribution to a collective work.

We think this kind of broad-axe indiscriminate treatment of the difficult photocopying issue is a poor substitute for mutually acceptable voluntary arrangements; that it would be ill-advised and counter-productive and, as Mr. Cary noted, could lead to the ultimate disappearance of the very periodicals and collective works which the libraries want to copy.

AAP'S OBJECTIONS TO THE LIBRARY AMENDMENT

We oppose the amendment offered by the library associations. Totally overlooked in their approach are basic differences and distinctions that exist between the kinds of material copied and their varying markets, the kinds of institutions which do the copying and the manner in which they distribute it. Below are a few examples of the distinctions which we have in mind.

(1) The library amendment would ignore the nature and purpose of the work, and would treat in the same manner a work prepared primarily for scientific or educational purposes and an article in a news magazine of current interest only.

(2) It would ignore the cost and effort involved in the creation of the work and the size of its anticipated market and readership.

(3) It would ignore the nature of the library that does the copying, treating in the same manner a small general purpose library with local patronage and a central research library serving a broad geographical area, possibly even crossing national boundaries to form part of a worldwide network.

(4) It draws no distinction between the sporadic over-the-desk delivery of a conventional photocopy and the systematic facsimile transmission of the work by telephone line, cable or over the air.

(5) It takes no account of whether copies of the work are available to the library or the user from the publisher or his authorized reproducing service, and makes no distinction between current and older issues.

NO "NORMAL" FAIR USE

Basically the vice in the library amendment is that it draws no distinction between the kinds of single copying which can be justified under the principles of fair use as stated in Section 107 and the kinds which cannot be so justified. We understand that the draft of the Committee Report which was under consideration in 1969 would have overlooked this distinction and incorrectly, in our opinion, stated that “the making of a single copy of an article or periodical *** would normally be regarded as fair use." There is no “normal” article, nor "normal" kind of copying or use, and there cannot therefore be an accurate generalization as to what normally would be fair use without at the same time taking into account the nature of the work and its use and the other criteria summarized in Section 107.

Periodical articles and contributions to collective works cannot be treated generically. The library copying of an article translated from the Chinese at a cost of thousands of dollars and with readership limited to a few cannot be fitted into the same pattern as the library copying of an article in a news magazine. Similarly, the systematic distribution of copies through a national or international library network should not be treated in the same manner as the occasional delivery of a copy to a local patron.

SUMMARY AND CONCLUSION We recognize the need for workable clearance procedures. By their very nature, however, they should be established by mutual agreement, not unilaterally or by statutory fiat. We have offered before and offer again to cooperate with the library associations in working out the necessary arrangements. We hope, in any event, to pursue this path with the Special Libraries Association and with any other group which may wish to participate.

Section 108 with the drafting changes suggested by us goes as far toward compromise in statutory form as publishers can go. The section, from our point of view, is troublesome. With the library amendment it would become intolerable. We urge therefore

(1) that the library substitute amendment be rejected ; (2) that Section 107 and Section 108 with our suggested changes be approved ;

(3) and that as presently provided in the bill, the remaining open questions relating to library photocopying be left for study by the National Commission.

Thank you for the opportunity to appear before your subcommittee.

ASSOCIATION OF AMERICAN PUBLISHERS, INC.,

New York, N.Y., December 5, 1972. Mr. THOMAS C. BRENNAN, Esq., Chief Counsel, Committee on Patents, Trademarks, and Copyright, Committee

on the Judiciary, U.S. Senate, Washington, D.C. DEAR MR. BRENNAN: This is in response to your letter of September 19, 1972, in which you invited the views of the Association of American Publishers, Inc., on the library photocopying issue.

As we understand it, Section 108 was added to S. 644 by the subcommittee in an effort "to supplement the general fair use provisions contained in Section 107.” 1 This was presumably done in response to library demands for a reproduction privilege including the right to copy an entire journal article on request by a patron.

Section 108 is harmful in some respects to the interests of publishers and their authors. In some respects, too, the section has technical flaws. Nevertheless, if the section were acceptable without substantive change to all of the other in

1 Your letter of September 19 1972.

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.

EXHIBIT A

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

[blocks in formation]

Section 108(a)-Line 7-eliminate "and."
Section 108 (b), (c), (d), (e) (3), (f)-

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), (a)—

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.
Mr. BRENNAN. The American Business Press Association.

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.

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