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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 in. quiries may be directed to Mrs. Andrea Albrecht, 301—727–2870 (collect).
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, 842% from the sale of reprints and 342% 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,
WILLIAM M. PASSANO,
Chairman of the Board.
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,
PUBLIC HEALTH SERVICE,
Bethesda, Md., July 31, 1972.
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. Sincerely yours,
MARTIN M. CUMMINGS, M.D.,
JULY 31, 1972. To Regional Medical Library Directors:
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.,
EXHIBIT 8 (A)
The American Library Association (ALA) WASHINGTON NEWSLETTER of August 11, 1972 contained the statement that follows:
Williams & Wilkins has recently published "A Statement to Librarians" which announced the establishment of a “Special Institutional Rate” applicable to library subscribers. Such rate is significantly higher than the regular subscription rate, involving an average increase of approximately 1242 percent.
The Statement further advises that libraries may not make photocopies of Williams & Wilkins' works for purposes of interlibrary loan, even if purchased at the Special Institutional Rate. Moreover, it demands that libraries pay a royalty to William & Wilkins of 5c per page per copy on multiple copies of a single work.
Innumerable libraries, librarians, and library trustees throughout the country have requested advice from ALA as to the response they should make to the demands of Williams & Wilkins.
The American Library Association is not in a position to prescribe the response of libraries and librarians, since that response will necessarily vary on the basis of a variety of local considerations.
However, it should be noted that:
First, a number of leading libraries have individually determined that they will not renew their subscriptions at the Special Institutional Rate;
Second, William & Wilkins' assertion that "a license such as that in the institutional subscription rate is a legal requirement” is based on a Commissioner's Report and is not, to date, the decision of the Court of Claims;
Third, the propriety of the Commissioner's Report is being strenuously contested in the Court of Claims by the Federal Government, the American Library Association, the Association of Research Libraries, the Medical Library Association, and a number of other educational groups and institutions;
Fourth, libraries in which copies are made on coin-operated photocopiers not under library supervision and control, derive substantially no protection which they do not already enjoy under the license granted by the Institutional Subscription Rate;
Fifth, general acceptance of the "use tax” concept of the Williams & Wilkins Institutional Subscription Rate may reasonably be expected to encourage other journal publishers to levy their own "use taxes” at ever-increasing rates;
Sixth, the Institutional Subscription Rate does not authorize copies for interlibrary loans and thus contemplates a continuing and rigorous restriction on access to scholarly materials contained in Williams & Wilkins publications.
Each library must decide for itself whether it will pay a premium for Williams & Wilkins' works notwithstanding the significant limits imposed on their use, and on the access to them, by the Institutional Subscription Rate.
EXHIBIT 8 (B)
Special Libraries Association (SLA) has issued the following statement to its members which was proposed by the SLA Special Committee for Copyright Law Revision and approved by the SLA Board of Directors.
Through its Special Committee on Copyright Law Revision, the Special Libraries Association has been engaged in the ten-year legislative revision effort that is now before Congress. To special libraries the rights to photocopy research materials under a "fair use" principle has been central to the SLA concern with the revision of the copyright law. Based on a recommendation from its Special Committee, the SLA Board of Directors in 1964 reaffirmed the principle of "fair use" as follows:
“A library owning books or periodical volumes in which copyright still subsists may make and deliver a single photographic reproduction of a part thereof to a scholar representing in writing that he desires such reproduction in lieu of a loan of such publication or in place of manual transcription and solely for the purposes of research."
In view of the recent Williams & Wilkins report, it is now deemed desirable that the Association take a position on the photocopying issue for the guidance of the Association's members. Whether adopted or rejected by the U.S. Court of Claims, the Williams & Wilkins report implies that libraries will be responsible for reimbursing publishers through a subscription surcharge, a per page licensing fee or a similar royalty arrangement. Increased costs to all special libraries will plainly result. Depending on the basis of reimbursement, any of these schemes will encumber the administration of special libraries and will burden their staff everywhere with unnecessary tasks, thus detracting from important functions. Moreover, an inevitable consequence of the opinion, should it stand, would be the inhibition of the business, education and scientific research communities who are the principal users of special libraries.
Pending final judicial action, the Association advises its members to continue copying practices followed heretofore. In the event that individual libraries are approached by publishers desiring to negotiate licensing agreements, royalty payments or subscription surcharge agreements, such requests should be referred to the legal counsel of their company or library, with advice to SLA's New York office of such actions.
EXHIBIT 8 (C)
The following statement was included in the August 1972 issue of MLA NEWS, a publication of the Medical Library Association.
However firmly Williams & Wilkins may be convinced that the Davis report on the copyright suit against NLM and NIH is law, just as firmly the Medical Library Association is convinced that the case is sub judice. Williams & Wilkins has demonstrated its conviction by announcing, for the journals that it publishes, special institutional subscription rates, higher than those charged individual subscribers, “which provides for an automatic license to make singlecopy photocopies of articles" for library patrons (but not for inter-library loan). The right of Williams & Wilkins to seek such additional payments is the subject of review by M LA's legal counsel.
Obviously the Medical Library Association believes that the Williams & Wilkins subscription/photocopy "package" is not in the public interest. Libraries, however, must decide individually whether or not they want to accept this type of proposal. They must weigh the fulfillment of immediate needs against the possibility of weakening the case for legislative provision of single-copy photocopy for medical research and physicians' study. They might also confer with their own institutional counsel.
We are aware that librarians are very conscious of their responsibility for the library's collection. As a means of maintaining the integrity of the collection, they might seek contributions of Williams & Wilkins periodicals to the library by individual subscribers.
Whatever action is decided upon, we suggest that individual institutions and libraries make their opinions known to Williams & Wilkins, to the National Library of Medicine, to the Department of Justice, Civil Division, attention of Thomas J. Byrnes, and to the Medical Library Association.
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,
NATIONAL INSTITUTES OF HEALTH,
Bethesda, Md., September 12, 1972. EUGENE B. BRODY, M.D., Editor, Journal of Nervous and Mental Disease, Institute of Psychiatry and
Human Behavior, University of Maryland School of Medicine, Baltimore,
Md. DEAR DR. BRODY: We are addressing this letter to you in your capacity as Editor of the Journal of Nervous and Mental Disease. As you probably are aware, your publisher, the Williams and Wilkins Company, has been involved in a copyright infringement suit against the Federal Government. Last February, a report was rendered on the case which was heard before a Commissioner of the U.S. Court of Claims. Subsequently, the Williams and Wilkins Company proposed a new subscription rate schedule for institutional recipients which includes an automatic photocopying license for library patrons and a royalty of five cents per page for articles copied for interlibrary loan.
We have indicated our willingness to pay higher subscription rates; however, we cannot accept the implication that a license for photocopying is necessary. We are therefore faced with the prospect of lapsing the Library's subscription to your journal.