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is enclosed with this letter. We believe that you who are deeply concerned with the health of scientific journals will read this with interest.

Although the Government does have a right to carry the proceedings further, it is, of course, our hope that this will mark the end to four years of litigation to establish the right of medical journals to remain viable so that they might continue to serve the scientific community.

Commissioner Davis' statement, "the plaintiff does not seek to enjoin any photocopying of its journals" should once and forever allay the fears of libraries and their patrons that our suit was aimed at the curtailment of photocopying (see p. 6 of the Report of the Commissioner).

Another concern of the libraries has been that a complicated and costly system of record keeping would be required to handle the payment of royalties to copyright owners. Nothing could be further from the truth. We have developed a simple and workable plan whereby libraries would be permitted to make single photocopies upon payment of a reasonable annual license fee. No record keeping or accounting would be involved. At the same time the plan recognizes that the cost of publication should be spread in a fair manner among the users of medical and scientific publications, including photocopiers, to avoid even higher subscription costs.

We hope that Government libraries as well as other public and private institutions will work with us toward a solution which gives proper balance to the public right to the flow of scientific information and the need of the author or publisher to compensation for having made the information available. We welcome comments or questions from our many friends in the scientific world in reference to this matter which is of such vital importance to us all. Most sincerely, WILLIAM M. PASSANO, Chairman of the Board.

EXHIBIT 2

DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,
NATIONAL INSTITUTES OF HEALTH,

To: Resource grants grantees.

From: Associate director for extramural programs, NLM.
Subject: Payment of royalties to publishers.

March 7, 1972.

1. On February 16, 1972, a Commissioner of the United States Court of Claims recommended to that Court that the plaintiff in the case of the Williams & Wilkins Company v. the United States is entitled to recover reasonable compensation for infringement of copyright. The Williams & Wilkins Company publishes 37 medical journals and has sued the United States Government alleging that the National Library of Medicine has infringed the copyright that Williams & Wilkins holds on four of those journals, namely Medicine, Journal of Immunology, Gastroenterology and Pharmacological Reviews. The alleged copyright infringement is said to have resulted from the practice of the National Library of Medicine in supplying photocopies of articles from those journals.

2. The recommendation of the Commissioner will now be considered by the full Court of Claims and in all probability will ultimately be carried to the United States Supreme Court. Accordingly, a final decision will not be forthcoming for some time.

3. The Williams & Wilkins Company, following the recommendation of the Commissioner of the United States Court of Claims has approached several libraries requesting royalty payments from the libraries for the right to photocopy articles from the journals. Conceivably, other publishers may do the same. 4. The expressed purpose of this memorandum is to inform you that grant funds from the National Library of Medicine must not be used for royalty payments to publishers without prior approval from the National Library of Medicine. This matter is now under intensive study at various levels and will be considered by the National Library of Medicine's Board of Regents on March 28, 1972. You will be kept informed concerning this matter but until further notice, you are not authorized to utilize grant funds for payment of royalties to any publishers. L. L. LANGLEY, Ph. D.,

Associate Director for Extramural Programs.

EXHIBIT 3

The Williams & Wilkins Company v. The United States

A STATEMENT OF FACT AND FAITH

We, as a leading publisher of medical books and journals, are dedicated to the concept of the proper dissemination of medical knowledge.

In 1968 we filed suit against the United States Government for infringement of certain copyrights in medical journals resulting from the unauthorized reproduction of our copyrighted materials by photocopying equipment. In the Report of the Commissioner to the Court of Claims (February 16th, 1972), the following facts are reported:

(1) Article 1 of the copyright statute says that the copyright owner “. shall have the exclusive right: (a) to print, reprint, publish, copy and vend the copyrighted work..."

(2) Each article in a journal is protected from infringement to the same extent as the entire journal issue.

(3) The Williams & Wilkins Company is entitled to recover reasonable and entire compensation for infringement of copyright.

These are the facts of the court case, but the implications may well be causing grave concern to librarians and the users of libraries. Let us make our position clear. We are by no means going to halt the proper dissemination of medical knowledge; our ideals now are the same as formerly-to serve the medical and science communities to the best of our abilities.

There will be no halt to the photocopying of material, as such a halt would indeed be harmful to the dissemination of knowledge. Neither will there be an unmanageable, unwieldy and costly system of record-keeping of photocopied materials as such a system would be detrimental to the library profession.

Instead, we have worked out a simple plan based on the idea of a reasonable annual license fee for the right of copying our materials. In this way, the librarian will be licensed to photocopy copyrighted materials without infringing copyright law, and the publisher will be recompensed for the use of his materials. We are hopeful that this statement will allay any fears which librarians or library users may be harboring. We welcome your comments and questions, and conclude by assuring you of our good faith and commitment to the medical communities and the library profession.

THE WILLIAMS & WILKINS CO.,
Baltimore, Md.

EXHIBIT 4

A STATEMENT TO LIBRARIANS FROM THE WILLIAMS & WILKINS Co.

The Wiliams & Wilkins Company has always charged the same subscription price to libraries that it charges to individuals despite the fact that for many years it has been customary for publishers to charge institutional subscribers to journals a higher subscription rate than that paid by individual subscribers. The concept of special institutional rates evolved from the idea that the copy of a journal owned by a library or other institution serves many more readers than does the copy owned by an individual. In light of this, the higher rate is charged to spread fairly the ever-increasing costs of publication among all those who use the journal and to components for possible loss of individual subscription revenue. If uncompensated, this loss is suffered not only by the publisher, but by those professional societies dependent on income from their journals.

Another aspect of multiple use is the photocopying of material contained in a journal and its subsequent distribution to library users. By allowing the use of photocopying equipment, librarians effect increased use and readership of the journal. The journal paid for by one institutional subscription is thus, through photocopying and multiple exposure, used far more than the journal paid for by an individual.

We have always felt that photocopying without the consent of the copyright owner was against the law. This view has not been confirmed in the first case ever brought on the issue, a suit filed against the United States Government by The Williams & Wilkins Company.

The suit was commenced in 1968 as a test case and has led to a 32 page opinion handed down by Court of Claims Commissioner James F. Davis on February 16, 1972. The opinion held that we are entitled to "reasonable and entire compensation" for library photocopying of our journal articles.

Beginning with 1973 volumes, we have institutional subscription rates which provide for an automatic license to make single-copy photocopies of articles from our journals for your patrons in the regular course of library operations on your premises, but does not include the making of photocopies for other institutions or for fulfilling interlibrary loans. There is no time limit on the exercise of this right and single-copy protocopies may be made throughout the life of the journal volume. The institutional rates are minimal increases of $1 to $10 per journal. No additional payments or any record-keeping procedures will be required. These rights are simply and automatically secured by payment of this institutional rate. Single-copy photocopies may also be made from volumes published prior to 1973 at no charge. Multiple copies of a single article may be made upon remittance of 5¢ per page per copy made to the publisher.

A journal exists to provide wide-spread and quick dissemination of information; its value is to those who subscribe to it or use its information. Subscriptions are the very life blood of a journal, but when users do not contribute in any way to its sustenance, the very existence of the journal is jeopardized. In our view, it would not be unreasonable for libraries to pass on to their patrons who request photocopies, a few cents to recover the increase in subscription rates, just as many do to cover charges made by equipment manufacturers.

Beginning with the January issue of each of our journals, there will be an Instruction for Photocopying which advises individuals to patronize their libraries in obtaining photocopies.

As has been documented many times, Williams & Wilkins has no desire to curtail photocopying. We prefer to permit libraries to continue their practices while at the same time insuring that the costs of publishing journals be spread equitably among all users.

The proper dissemination of scientific knowledge is an ideal to which we, as publishers, have always been dedicated. We continue in our dedication to that ideal, and are confident that our solution is fair, reasonable and workable. You will automatically be billed for the new subscription rate for 1973 volumes via your usual method of ordering (either through your agent or direct from us). In the unlikely event that no photocopies will be made of any articles in one or more of our journals to which you subscribe and you are in a position to assure us of this fact, you may apply for a refund for that portion of the institution rate which covers the license to photocopy. Be sure to make such application directly to The Williams & Wilkins Company and not through your agent and then only after you have entered your institutional subscription. You should recognize, however, that a license such as that in the institutional subscription rate is a legal requirement in order for you to make photocopies. We are most willing to communicate directly with our customers. Any inquiries may be directed to Mrs. Andrea Albrecht, 301-727-2870 (collect).

EXHIBIT 5

JUNE 23, 1972.

Dr. MARTIN CUMMINGS,
Director, National Library of Medicine, Mid-Atlantic Regional Medical Library,
Bethesda, Md.

DEAR DR. CUMMINGS: The Williams & Wilkins Company publishes 38 scientific journals containing approximately 2,600 articles, 80% of which will appear in journals we publish for societies as their official publications. Net earnings from these journals are shared with the societies. The societies' share is generally 50% (sometimes greater) and it is usually used by them to defray the cost of editing.

In the main our journals are supported by their users. 64% of the journal's income comes from subscribers, 24% from advertiser support, 8%% from the sale of reprints and 3% from the sale of back issues. Since reprography is another form of use, we continue to reiterate "use all you like, but pay for what you use." Thus, as reprography inevitably grows (and we think it should). this form of use should pay its fair share to help keep the learned periodical afloat. Certainly, without them many publishers and librarians alike would have lesser reasons for being.

So, beginning with the 1973 volumes, each of our journals will be offered to our library subscribers at institutional rates which will average $3.65 per volume higher than the rates to individuals. Such an amount is well below the institutional rates offered by many other publishers with no attending benefits and certainly well below some erroneous forecasts. This modest increase carries with it an automatic license which allows the library to make single-copy photocopies of articles from our journals for their individual patrons in the regular course of library operation on the premises. The institutional rate applies to all libraries, great and small, but it does not include the making of photocopies for other institutions, commercial or noncommercial organizations, or fulfilling interlibrary loans. In the interest of maintaining the principle that scientific journals will be supported by those who use them, it would seem reasonable for libraries to increase their photocopying charge to their patrons by a few pennies which in the course of a year will more than repay the added cost of the institutional rate.

Beginning October 1, 1972, we will license each of the 11 regional libraries engaged in the interlibrary loan program at a rate of 5¢ per page per copy for each photocopy of articles appearing in our journals supplied to other libraries. In connection with this license, we should like to make the following comments: 1. Although we believe that the receipts from interlibrary loan payments will be less than 1% of the journals' total income we nevertheless look upon them as essential to the long-time health of the journals. We can visualize the ultimate case when only the regional libraries will subscribe to some of our journals and if that time should come, the income from library loan photocopies will be vital to the journals' support.

2. As closely as we can estimate we do not expect to receive more than $500 per year per regional library on the average. Even the N.L.M. will probably find the cost in the neighborhood of $1,000 annually which is the cost of 20 average journal subscriptions.

3. We understand that records are currently kept of all interlibrary loan transactions and therefore only a slight additional effort will be required to account for payments to the copyright owner. We propose such payments being made semi-annually.

4. We think it reasonable for regional libraries to add 5¢ per page to the charge which we understand most now make for supplying photocopies on interlibrary loans. Not only will this recover to the library the payments made to us but also will allow the real users of the journals to share in their support. 5. The opinion of Commissioner Davis of the Court of Claims in our suit against the Government is an authoritative judicial interpretation of the Copyright Act as it applies to library photocopying and will remain so unless or until it may be altered on appeal.

This letter is being sent to each of the regional libraries well in advance of our normal billing time so that everyone will have time to digest and discuss our plan. We, of course, welcome the opportunity to discuss any aspect of this plan with you. We hope that by the reasonable nature of our position you will accept our continued affirmation that we are not adversaries but rather concerned public who look upon you as valued customers and colleagues. Sincerely,

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DEAR MR. PASSANO: I am writing in response to your letter of June 23, in which you detail the imminent imposition of institutional subscription rates beginning with 1973 volumes, which rates will include payment of licensing fees for photocopying for interlibrary loan purposes, beginning October 1, 1972.

In connection with the institutional subscription rate, your letter indicates that the new rate carries with it an automatic license for making single-copy

photocopies for individual patrons in the regular course of operations on the premises. Your recent "Statement to Librarians" states that a portion of the institution rate covers this license. However, you have subsequently indicated to us that the entire price difference between the institutional rate and the individual rate constitutes payment for this license. It is our position that we would accede to a rise in price based on an institutional rate which would be applied "to all libraries, great and small," but could not accept the implication that a license for photocopying is necessary. We must, therefore, respectfully decline to pay the institutional rate for our subscriptions, at least during the pendency of the litigation between us. We would be pleased to renew our subscriptions at the individual rate, or at an institutional rate which does not include a license for photocopying. If you insist upon tying the renewal of our subscription to the payment of a licensing fee, however, we shall have no option other than to let them lapse.

You also state you plan to charge a fee of 5 cents per page for each photocopy made for purposes of interlibrary loans. On the advice of our counsel, I am instructing my staff, as well as the Regional Medical Libraries, to refuse payment of such a fee based on our position in the case before the Court of Claims. Further, we believe it inappropriate to make any change in acquisition and interlibrary lending practices until that litigation is finally adjudicated.

With respect to the Regional Medical Libraries, our instructions apply, of course, only to those items paid for with contract or grant funds from the National Library of Medicine. Although we have informed them of the action we are taking with regard to the institutional subscription rates, we would not presume to advise them regarding the position to be taken by their parent institution for services they furnish on their own behalf.

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As you are aware, on February 16, 1972, Commissioner James F. Davis of the U.S. Court of Claims filed a "Report of Commissioner to the Court" on the copyright infringement suit against the Federal Government by the William & Wilkins Company. This preliminary report holds that the longstanding photocopying practices of NLM and the NIH Library are in violation of the journal publisher's copyright. The Commissioner's Report is not final and the Justice Department has filed an exception to the Report with the Court of Claims.

Despite the fact that the case is still being adjudicated, the Williams and Wilkins Company has informed the National Library of Medicine that beginning October 1, 1972, they plan to license each of the eleven regional medical libraries engaged in interlibrary loans for photocopying articles from their journals at a rate of 5 cents per page per copy. A number of libraries have asked us for clarification of the NLM position on these matters.

Until such time that you are informed otherwise, it remains our policy that no NLM contract or grant funds may be spent for licensure or royalties for photocopying journal articles for interlibrary loan purposes because we believe such payments to be unnecessary. If it should be ultimately decided that such photocopying must be licensed, such costs will then be considered as proper charges against grant and contract funds.

We cannot advise you in your dealings with Williams and Wilkins Company concerning services you provide outside the guidelines of the registered medical library programs. However, it may be of interest to you to know our position concerning Williams and Wilkins Company's new 1973 institutional subscription rates which purportedly provide for an automatic license to make single photocopies of journal articles on the premises. We plan to inform the Company that we will not pay their new institutional subscription price, but will pay whatever subscription rate they may set for institutions that excludes the license fee.

We hope this will assist you in planning for the activities of the NLM component of your library.

MARTIN M. CUMMINGS, M.D.,

Director.

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