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Copyright owners have emphasized that the only real issue is reasonable compensation for library copying of their articles. Copyright owners have accepted the principle that workable clearance and licensing conditions should-and can be established to provide reasonable compensation to copyright owners.

The House Judiciary Committee said this is the fair and rational solution to the problem. But library spokesmen have flatly rejected it. Therefore, the National Commission should recommend reasonable licensing systems.

We thank the subcommittee for this opportunity to present this statement.

Senator McCLELLAN. Fine. Thank you.
[The statement of the Authors League of America follows:]
SUBCOMMITTEE ON PATENTS, TRADEMARKS AND COPYRIGHTS,
COMMITTEE ON THE JUDICIARY, UNITED STATES SENATE,

July 31, 1973.

STATEMENT OF THE AUTHORS LEAGUE OF AMERICA ON "LIBRARY PHOTOCOPYING"

AND S. 1361 Mr. Chairman and Members of the Subcommittee: My natme is Jerome Weidman. I am president of The Authors League of America, a national society of professional authors and dramatists. The Authors League appreciates this opportunity to present its views on problems of "library photocopying" related to the Copyright Revision Bill. May I request that this statement be included in the record?

We respectfully recommend to the Subcommittee that:

1. The library associations' proposal for a "library reproduction" exemption should be rejected.

2. The National Commission on New Technological Uses of Copyrighted Works should be established; and it should investigate and make recommendations as to

(a) “workable clearance and licensing conditions" for the library reproduction of copyrighted works, the solution recommended by the House Judiciary Report, in those words; and

(0) "such changes in copyright law or procedures that may be necessary to assure for such purposes access to copyrighted works, and to pro

vide recognition of the rights of copyright owners." 3. Sec. 108 should be revised to eliminate ambiguities which would destroy the rights of authors and publishers.

4. Section 107 should be retained. However the judicial doctrine of fair use (which it simply reaffirms) should not be expanded by interpretation, in the Committee report, to “normally" include so-called "single-copy" reproduction of an entire article.

THE DEMAND FOR A LIBRARY REPRODUCTION EXEMPTION The Association of Research Libraries and the American Library Association seek an exemption (through a new Sec. 108(d) (i)) permitting libraries or archives (i) to reproduce copies of articles and portions of books and (ii) to reproduce, under loose conditions, copies or phonorecords of entire books or other copyrighted works. Similar exemptions have been proposed in the past and rejected by this Subcommittee and by the House Judiciary Committee. For the reasons discussed below, the Authors League urges the Subcommittee to reject the library associations' current effort to create this damaging limitation on the rights of authors and other copyright owners. "Copyright Owners", it should be noted, include authors, non-profit societies which publish technical and scientific journals (e.g. American Chemical Society), non-profit publishers of books and journals (e.g. the university presses represented by The Association of American University Presses), and for-profit publishers.

The context of the Issues

Clause (1) of the proposed library exemption would allow libraries to engage in unauthorized, uncompensated "one-at-a-time reprinting" of entire articles, and portions of books and other works.

"One-at-a-time reprinting" is not an argumentative or pejorative term. It is a phrase used by experts to describe the process of disseminating articles, chapters from books, and entire books to readers and users-by reproducing a single reprint to fill each individual order. Each copy, made by Xerox or other process, is an exact reprint of the original-line by line, letter by letter, as originally set in type. The process of one-at-a-time printing is now well-established. It is used by commercial reprint publishers, such as University Microfilms, to supply copies of older books to individual customers, it is used by journal publishers; and it is vigorously employed by several large libraries which serve as reprint centers for the patrons of many other libraries.

The process involves unlimited reproduction of copies of a given article or other work. The reprint publisher produces one copy for each order; but it produces as many copies of a work as there are orders for it. Similarly, under clause (1) of the librarians' proposed exemption, any library could reproduce many copies of an entire article or portion of a book-one copy for each of the several individuals who orders it. And any library could reproduce many "single copies" of each article in a periodical issue, so long as it provided one copy per order. The IssuesAnd Positions of the Parties

Copyright owners agree that certain copying of copyrighted works can be done by libraries without permission or compensation-i.e. copying which falls within the scope of fair use. And librarians agree that some library reproduction of copyrighted works is, and should be, copyright infringement.

But there is sharp disagreement over library reproduction of entire articles, and similar portions of entire books. Library spokesmen demand that libraries be permitted to reproduce copies of any article and distribute them, one-at-atime, to persons who order them, without the copyright owner's permission or compensation. While library spokesmen have focussed their demand on scientific technical and scholarly articles, their proposed exemption would give libraries the power to reproduce copies of any article or "similarly” sized portion of any book or other work.

Libraries seek power to reproduce these copies without compensation to the copyright owner-even though (1) copies are available from the copyright owner, directly or through its licensed reproduction service, or/and (2) the copyright owner will authorize the libraries to make the copies, provided reasonable compensation is paid to the copyright owner under "workable clearance and licensing conditions."

Copyright owners contended that such unauthorized, uncompensated library reproduction of entire articles and "similarly" sized portions of entire books and other works is not permitted, and should not be permitted, under the Copyright Act. They have made it clear that the only real issue is reasonable compensation to copyright owners for library one-at-a-time reprinting of their articles and other works. Copyright owners have accepted the principle that "workable clearance and licensing conditions” should—and can—be established to authorize libraries to produce copies of these materials, and to provide reasonable compensation to copyright owners.

“Workable clearance and licensing conditions”, as the House Judiciary Committee emphasized (Rep. 83, p. 36) are the fair and rational solution to the problem. But library spokesmen have flatly rejected it-in discussions with representatives of copyright owners, and in their current demand for an exemption permitting this type of one-at-a-time reproduction by libraries. Library spokesmen have contended that copyright owners must not be compensated. Their position poses two paradoxes. First, libraries do pay to reproduce copies of entire articles and other works; they pay the Xerox company and other manufacturers of equipment and supples very handsome compensation for providing the tools of one-at-a-time reprinting; they pay their employees for the work involved in producing the copies; the reprinting libraries often charge substantial amounts to other libraries for reproducing copies for their patrons. Second librarians are deciding that public funds or funds provided by taxdedurtihle contributions should not be used to compensate those who make their

1 University Microfilms secures licenses from the copyright owners and pays them royalties.

one-at-a-time reprinting possible—the copyright owners who produce the articles and books that are the grist for their reproduction mills. By contrast, librarians have also made the decision that the cost of producing the copies must be absorbed by libraries, and no charge made to the readers and users. The Proposed Library Exemption Destroys the Balanced Solution Envisioned by

Congress The reports of the House Judiciary Committee, and the draft Report of this Subcommittee, envisioned a 3-part solution to the problems of library copying which would serve the legitimate needs of library patrons, protect the right of copyright owners to reasonable compensation for the use of their property (and for their investment and work in creating it), and preserve the independent, entrepreneurial system of creating and disseminating works of literature, science, technology and art. The solution is based on three components: (1) fair use; (2) “workable clearance and licensing conditions”, and (3) the principle of "availability", underlying Sec. 108 of S. 1361. The librarians' proposed library reproduction exemption destroys this balanced solution. (1) Fair Use

As the House Judiciary Report, and the draft Report of this Subcommittee indicate, the doctrine of fair use applies to libraries; and library copying which is a fair use can be done without the permission or compensation of the copyright owner. The House report said : “Unauthorized library copying, like everything else, must be judged a fair use or an infringement on the basis of all the applicable criteria and the facts of the particular case.” (H. Rep. No. 83, p. 36).

A principle purpose of the proposed library reproduction exemption is to alter that concept, and permit all library copying of entire articles and similarly sized parts of books and other works. If the library exemption simply authorized copying which was fair use, it would be unnecessary, and should be rejected to avoid confusion. To the extent that it permits unauthorized, uncompensated library copying which exceeds fair use, the exemption should be rejected because “it is more sweeping than is necessary", and--would wreak great injury on copyright owners, while at the same time destroying the balanced solution that would fairly serve the legitimate rights and needs of all concerned.

The proposed library exemption seeks to legalize the very type of uncompensated library reproduction of entire articles which Commissioner Davis held was infringement, and not fair use, in Williams & Wilkins v. United States. His opinion carefully analyzed--and rejected—the claims of the American Li. brary Association and Association of Research Libraries that such wholesale copying was fair use. His findings and opinion were appealed by the government to the Court of Claims, and its opinion is awaited. But regardless of the outcome, the Authors League contends that such unauthorized, uncompensated one-at-atime reprinting of entire articles should not be permitted by the Copyright Act, because of its unfair and damaging impact on copyright owners, and the independent, entrepreneurial copyright system of disseminating such works. It is precisely this type of library reproduction which, the House Report emphasized, should be conducted under "workable clearance and licensing conditions"-with payment of reasonable compensation to copyright owners. (2) “Workable Clearance and Licensing Conditions"

The House Judiciary Committee prescribed "workable clearance and licensing conditions" as the second component of a balanced solution. It urged all parties concerned "to resume their efforts to reach an accommodation.” Some librarians have recognized that a clearance and licensing system, with reasonable payment to copyright owners, is the rational method permitting library reproduction of copies of entire articles and similarly sized portions of books. Copyright owners have accepted this principle, and have sought to develop such systems in cooperation with library spokesman. The latest effort occurred in March, 1973 when representatives of learned societies, university presses, authors and other journal publishers met in Washington with a large group of library spokesmen, including representatives of The American Library Association and Association of Research Libraries. For two days the group discussed various aspects of clearance and licensing systems for library reproduction of journal articles. Plans were made for a subcommittee to continue the work. But the entire effort collapsed because too many library leaders stubbornly adhered to their earlier position that libraries must have the power to engage in uncompensated reproduction of copies of journal articles-and that copyright owners must be denied compensation. They refused to continue the joint effort.

The stubbornness and unreasonableness of library spokesmen should not be rewarded by giving their constituents, the libraries, the power to engage in uncompensated reproduction of articles and similarly sized portions of books. Such reproduction can be done under fair clearance and licensing systems. And those systems can be developed by the machinery designed by this Subcommittee for that purpose—The National Commission on New Technological Uses of Copyrighted Works.

Moreover, the proposed library exemption is a totally unnecessary abrogation of copyright owners rights, in view of the principle of “availability": (3) The Principle of Availability"

Section 108(d) permits libraries to reproduce—for their patrons, or patrons of other libraries-single copies of any work that is not "available" from desig. nated sources. As indicated below, The Authors League believes that certain revisions should be made in the section to remove ambiguities that would deprive copyright owners of essential rights. However, the principle of "availability" assures that the patrons of libraries can obtain reprints of entire journal articles and similarly sized portions of books. If the copyright owner will not provide a copy of the article, directly or through its authorized reproduction service, the library may produce a reprint, without permission or compensation.

In a series of meetings held in 1972, representatives of journal and book publisher, and authors, met with library representatives to discuss Sec. 108 and the principle of availability. Library spokesmen indicated that their principal concern was assuring that reprints of scientific, technical and scholarly articles were "available"-i.e. could be provided—to patrons who requested them. Some library spokesmen also recognized that library reproduction of copies of these articles should not be permitted where the journal publisher was making copies available directly, or through its authorized reproduction service. A proposed revision of Sec. 108(d), suggested by a library representative, was drafted. Although it would have increased the obligations of publishers under Sec. 108 to assure "availability" of reprints of articles, it was summarily rejected by The American Library Association and Association of Research Libraries. The reason is simple: their spokesmen insist that libraries must be permitted to reproduce copies of articles without compensation even though the journal publisher is making copies available, directly or through an authorized reprint service. This destruction of the copyright owner's right, and denial of needed income, cannot be justified under the principle of "availability.” Where the copyright owner provides copies of the article, as many publishers do, libraries should not be allowed to engage in uncompensated reproduction of these copies. If libraries wish to provide copies to patrons faster than the publisher does, then they should work with copyright owners to establish "workable clearance and licensing conditions."

However, library spokesmen—with some notable dissents—have arbitrarily rejected the 3-part balanced solution. They will have no part of "workable clearance and licensing conditions", or a reasonable concept of "availability" which allows uncompensated library reproduction only when the publisher is not providing copies. They continue to demand the power to engage in uncompensated reproduction of journal articles and similarly sized portions of books, despite the serious injury this would inflict on copyright owners and the copyright system. The Library Exemption Would Injure Copyright Owners and the Copyright

System (i) Unquestionably, the proposed library reproduction exemption would reduce subscribers to scientific, technical and scholarly journals by libraries, who are their principal subscribers (and by individual subscribers). Librarians have candidly admitted that this is the purpose of library reproduction of journal articles. The attrition occurs at two levels. Some libraries took multiple subscription to heavily used journals so that several patrons could use them at the same time. Now one subscription suffices, since it is used to reproduce copies of articles for each user who wants them.

(ii) On the second level, library reproduction of journal articles allows many libraries to eliminate all subscriptions to many journals. When patrons of these libraries want an article, the library forwards the order to a central library which reproduces a single copy of the article for the patron. Library spokesmen, with a penchant for confusing euphemisms (e.g., they label unlimited library copying of articles as “single copying” because the copies are produced one-for-a-customer) blithely characterize these reprint transactions as "interlibrary loans". In truth, no loan is involved. The reprint is supplied to the patron who ordered, and he keeps it—it is his property. Admittedly, library reproduction of journal articles is designed to permit a few libraries to serve as one-at-a-time reprint services providing copies of articles to many other libraries who will not have to subscribe to these scientific, technical or scholarly journals. The government libraries involved in the Williams and Wilkins case engaged in this "wholesale” one-at-a-time reprinting of journal articles. Each year, their Xerox machines churned out thousands upon thousands of reprints of journal articles-one-at-a-time-to fill the orders of patrons of other libraries as well as their own patrons.

Under these circumstances, the proposed exemption is bound to deprive journal publishers of income from subscriptions that are not renewed, and additional subscriptions that are not placed because of library reproduction of their articles.

(iii) Moreover, the proposed exemption would deprive journal publishers of compensation for uses of their works by audiences reached by the new process of dissemination-one-at-a-time reprinting of articles. Doctors, engineers, scientists in every field and other potential readers can survey the contents of many journals through abstracts—then order reprints of the particular articles that interest them. They are not readers of "journals”. They are an audience served directly by reprints of articles. This process of dissemination will continue to expand, for each journal article is a separate (and separately copyrightable) work, unrelated to the other articles in the issue. One-at-a-time reprinting permits users to acquire copies of only the particular works-i.e. separate articles—they want to read.

Similar developments of new processes for disseminating literary, musical and dramatic works have occurred frequently : e.g., motion pictures and television (to supplement the stage), the phonograph record, radio and tape recordings (to supplement sheet music). The paperback book revolution created a process of disseminating books—in low priced editions, through mass distribution—to an audience many times greater than that reached by the convention method of distribution, hard-cover "trade" editions.

Until now, authors and publishers have been compensated for uses of their works by audiences reached through these new processes of dissemination. However library spokesmen now ask Congress to impose an exemption which would deprive journal publishers of payment for uses of their works by the increasing audience reached by the one-at-a-time reproduction of their articles. This means that innumerable readers who will benefit from the publisher's work in editing, printing and distributing its journals will not help defray any part of the publisher's cost of doing the work which made the articles "available" in the first place. These costs continue to rise, though subscriptions remain static, or decline. Deprived of income which they need and are entitled to receive, publishers will be obliged to discontinue many scientific, technical and scholarly journals.

(iv) The proposed library exemption would also damage authors of poetry, fiction, and books and articles on current political and social problems, biography, history and a wide range of subjects. After these works first appear in periodicals or books, they are often reprinted-with the author's permissionin anthologies, text books, periodicals and other books (such as collections of an author's poetry, short stories or articles). Many authors earn a substantial part of their income from such reprinting of their works. Indeed, some earn the major part of their compensation in this manner. Poets and essayists, for example, receive very little when a poem or essay is published in a periodical; but they may license several different publishers to reprint the poem or essay in anthologies or collections. And although each fee is small, the accumulation of fees can produce a modest reward for work of substantial literary val. ue. Authors of books also earn a significant part of their compensation, in many instances, from permitting the reprinting of excerpts—of similar size to periodical articles-in anthologies, textbooks and other collections.

Under the proposed exemption, libraries—including college and university libraries—would have the power to reproduce single copies of poems, articles and sections of books, without compensation to the author. The process of supplying these copies-e.g. one to each student in a university class in literature or political science-can replace several copies of an anthology or book in the library, or several copies of a paperback collection or text in the college bookstore. Unless authors are compensated for uses of their works by audiences reached by the new process of one-at-a-time reprinting, they will be deprived of a substantial portion of their income.

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