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Soviet Astronomy-AJ, published by the American Institute of Physics-circulation 635.

Soviet Journal of Nuclear Physics, published by the American Institute of Physics-circulation 715.

Soviet Physics-Acoustics, published by the American Institute of Physicscirculation 789.

Soviet Physics-Crystallography, published by the American Institute of Physics-circulation 794.

Soviet Physics-Doklady, published by the American Institute of Physicscirculation 1,000.

Soviet Physics-JETP, published by the American Institute of Physics-circulation 1,480.

JETP Letters, published by the American Institute of Physics-circulation 1.198. Soviet Physics-Semiconductors, published by the American Institute of Physics-circulation 668.

Soviet Physics-Solid State, published by the American Institute of Physics— circulation 1,195.

Soviet Physics-Technical Physics, published by the American Institute of Physics-circulation 950.

Soviet Physics-USPEKHI, published by the American Institute of Physicscirculation 1,088.

In addition, it produces and markets the following secondary services: Current Physics Advance Abstracts:

(a) Solid State;

(b) Nuclei and Particles; and

(c) Atoms and Waves.

Current Physics Titles:

(a) Solid State;

(b) Nuclei and Particles; and

(c) Atoms and Waves.

Searchable Physics Information Notices, a computer readable magnetic tape called SPIN.

The individual Institute members are the authors of most of the papers published in its learned journals, having performed the research in the science of physics and related sciences which are therein reported. The journals of the Member Societies and those sponsored directly by the Institute are the primary and archival methods of recording and dispersing this information, supported and assisted by the secondary services above mentioned made necessary and possible by modern technical invention.

The 50,000 individual Institute members are, of course, the principal individual readers of its journals and the principal ultimate users of its secondary services in their pursuit of advances in the science. The Institute of Physics by reason of the nature of its membership, the publishing functions it performs and its dedication to serve the public interest alone, may well have a broader viewpoint on the question of library photocopying of copyrighted material than the persons or organizations whose interests are more limited.

We have had the benefit of reading the July 31, 1973 statement prepared for your Committee by Dr. Robert W. Cairns as Executive Director of the American Chemical Society. We believe that it fairly presents the position of the American Institute of Physics Incorporated in this Important matter. We urge that Dr. Cairns' statement receive your most careful consideration in framing the Copyright Revision Bill.

Respectfully yours,

AMERICAN INSTITUTE OF PHYSICS INCORPORATED,
H. RICHARD CRANE, Chairman.

STATEMENT TO SUPPLEMENT TESTIMONY ON S. 1361 SUBMITTED BY EDMON LOW ON BEHALF OF AMERICAN LIBARAY ASSOCIATION

Some testimony presented at the above Hearing urged that some royalty payment for photocopying be instituted and stated that a mechanism is now available to easily permit such an arrangement. The following points are submitted for consideration in this connection:

(1) Such an arrangement completely destroys the fair use concept which is the right to copy in limited amounts for stated purposes without permission.

(2) If payment is required for all photocopying, the scholar or library then must secure license for such from each copyright proprietor which then would require that the Copyright Act provide for mandatory licensing.

(3) Even with mandatory licensing, there is no assurance that works will not be suppressed by establishment of royalty rates which are prohibitive. Therefore, the Copyright Act must establish a fixed royalty rate applicable to all copying. (4) The mechanism envisioned apparently involves sense marks on copyrighted works which could be recognized and recorded by a Xerox machine, properly equipped, as to copyright proprietor, journal or monograph, and royalty rate and amount. This raises the following questions:

(a) What would be done about the vast amount of material now protected by copyright but without sense marks?

(b) What Xerox machines would be required to be fitted with sensing equipment? Only those in the library? Or all those in a school or college? Or all machines everywhere?

(c) How would royalty rates be charged and who would regulate charges? Such regulations would be necessary since copyright is a monopoly.

(d) Would different rates be permitted for different works?

(e) Would royalties be payable in a lump sum to some agency, or would they have to be segregated by copyright proprietor, journal, article, or monograph?

(f) How often would payment be made?

Of the above points, the first is by far the most fundamental, and important. Abandoning fair use is a sacrifice which the public should not be required to make. The other points indicate that, even if this concession were made, there is no practical way at present for libraries to implement such a concept. This is the chief reason why no compromise has been possible-copyright proprietors want fair use eliminated, libraries are unwilling to give up the concept, and no workable procedure has been proposed in its stead.

AMERICAN MEDICAL ASSOCIATION,
Chicago, Ill., August 7, 1973.

Hon. JOHN H. MCCLELLAN, Chairman, Subcommittee on Patents, Trademarks, and Copyrights, Committee on the Judiciary, U.S. Senate, Washington, D.C.

DEAR SENATOR MCCLELLAN: S. 1361, now before your Committee, in proposing a general revision of the copyright laws imposes in section 108 a special restriction that libraries shall not photocopy any published book unless there is assurance that copies are not available from commercial sources. Such a provision, we believe, would seriously hamper the dissemination of scientific information through reference libraries, and would be particularly unfortunate for members of the scientific community and physicians in their concern for health care delivery.

The AMA joins with national library groups and professional societies in opposition to the restriction proposed in section 108. We urge legislative action which will acknowledge the right of the scientific and scholarly community to gain access to the educational resources of this country, and assure that libraries may disseminate single photocopies of scientific publications.

Our area of concern is the right to reproduce single copies from scientific publications. The overriding need to preserve this right is expressed in a June, 1972, editorial in the Journal of the American Medical Association (JAMA), entitled "Photocopying and Communication in the Health Sciences." A copy of the editorial is enclosed. We respectfully submit it for your examination, and request that this letter and the editorial be incorporated in the record of the hearings on S. 1361. Sincerely,

ERNEST B. HOWARD, M.D.

[Journal of the American Medical Association, June 5, 1972]

EDITORIAL

PHOTOCOPYING AND COMMUNICATION IN THE HEALTH SCIENCES

A long-standing objective of libraries is to make intellectual resources availto the scientific and scholarly communities. In recent years this objective

has been complicated by the tremendous increase in number of publications so that it is no longer possible for most libraries to include all important and relevant publications in a single collection. There are an estimated 6,000 medical journals published each year and 206,000 articles were included in the 1971 edition of Index Medicus.

One solution to this problem is the sharing of resources through interlibrary cooperation. Through the impetus of the National Library of Medicine, this concept became highly developed, resulting in the formation of a Regional Medical Library network across the country, in which libraries of excellence were designated as resources in 11 regions to assist those with lesser resources, such as the small community hospital libraries.

In this system, the distribution of library materials over distances was primarily accomplished through photoduplication. This process decreased the necessity of loaning original volumes, as selections from publications may be duplicated and transmitted through mail, or by telefacsimile or other processes. This method was highly successful and enabled scientists, practitioners and scholars to have ready access to great repositories of information. In the case of the physician in practice, especially in remote areas, it was a means of obtaining specific information required in patient care or for keeping up with areas of interest.

A recent court decision, however, is threatening to reverse this progress. Four years ago in a test case, the Williams and Wilkins Company, Baltimore, publishers of more than 30 scientific and medical journals, sued the National Library of Medicine, National Institutes of Health, alleging that their photocopying activities constitute an infringement of copyright. In February 1972, the Commissioner of the United States Court of Claims ruled that Williams and Wilkins clearly had grounds for complaint, that photocopying diminishes its potential market, and that the company is entitled to compensation.

The consequences of this action to libraries and the scientific community cannot yet be fully perceived. Suggested methods of compensation, such as a fivecent-per-page charge or increases in subscription, entail unwieldly accounting systems or a prohibitive increase in cost at a time when libraries are already burdened with budgetary problems. Officials at the National Library of Medicine have estimated that the cost to medical libraries may run into millions of dollars a year. This, in turn, may force many medical libraries to limit services or increase access time, with serious consequences to those concerned with health care the researcher, the teacher, and the practitioner. A broader issue is the implications of this decision on the conversion of printed matter to microfilm, tape storage, and other media.

The Commissioner's ruling will be appealed to the full panel of seven judges on the U.S. Court of Claims, and, in likelihood, to the Supreme Court. In the meantime, the American Library Association, Association of American Medical Colleges, Medical Library Association, and other professional societies have joined forces to urge the Court to reject the Commissioner's conclusion of law. The American Medical Association joins these groups in reaffirming its belief in the right of the scientific and scholarly communities to gain access to the intellectual resources of this country. Toward this end, the Association reiterates its position that the scientific community may continue to reproduce single copies from AMA scientific publications.

Hon. JOHN L. MCCLELLAN,
Little Rock, Ark.

KTHV, August 28, 1973.

DEAR SENATOR MCCLELLAN : Pursuant to our discussion in your office last week, I have prepared the attached statement on behalf of the Arkansas Broadcasters Association regarding Section 111 of Senate Bill 1361. I have done this not with a lot of legal mumbo jumbo, but rather in simple terms as I understand the situation.

Most of the attached information is already into the record of your committee, having been testified to by a representative of the National Association of Broadcasters. Our position is in agreement with the NAB.

Thank you, Senator, very much for the very informative meeting that we had with you in your office, and certainly we hope to have more of this type dialog in the future.

Thank you for allowing us to submit this addendum paper for the record.

Very cordially yours,

B. G. ROBERTSON.

STATEMENT OF B. G. ROBERTSON

My name is B. G. Robertson. I am Vice President and General Manager of television station KTHV, Little Rock, Arkansas. This statement concerning the CATV copyright provisions of Section 111 of S. 1361 has been endorsed by the Arkansas Broadcasters Association.

Cable television is no stranger to Arkansas. CATV systems have been in operation there since the early 1950's and have played an important role in bringing television service to many in remote areas who otherwise would be without television altogether, or at least, with very limited service. But CATV did not come among us without raising problems. The principal questions it presented were (1) how many, if any, distant television signals should a system be allowed to bring into the market area of a local television station and (2) should CATV systems pay copyright fees for the use of the programs they retransmit. These questions were kicked around for years without any semblance of agreement on a resolution by the people concerned-the broadcasters, the cable operators and the copyright owners. Finally, in the latter part of 1971 the White House's Office of Telecommunications Policy presented the concerned parties with a compromise agreement and strongly urged each of them to adopt its provisions. We broadcasters were not happy with the terms of the compromise. It permitted CATV to import more distant signals into our markets than we believed we could live with in terms of the effect those signals could have on our audiences and revenues. On the other hand, however, the agreement did offer an acceptable solution to the old nagging question of why CATV systems should not pay copyright fees just like we do. With a very short time allowed to decide whether we would support the agreement and faced with the stark reality that this might be the last chance to achieve a resolution of those old gnawing questions, we in Arkansas reluctantly advised our national trade association representatives to adopt the compromise. Broadcasters around the country apparently shared our views and our national representatives agreed to the compromise.

The FCC was delighted by this long sought agreement on the distant signal and copyright questions. They immediately went to work on implementing the regulatory provisions of the compromise and in a couple of months had issued rules reflecting what the parties had agreed upon as to distant signals. In other words, the cable operators got all they had bargained for by adopting the compromise. Copyright legislation-the other half of the deal-remained to be implemented.

The principal copyright provisions of the compromise agreement are as clear as the nose on your face:

1. All parties agree to support separate CATV copyright legislation as described in the agreement.

2. Compulsory licenses would be granted to CATV operators to cover all signals authorized under the FCC's February 1972 rules. There would be no compulsory license granted for distant signals authorized by the FCC subsequent to the February 1972 rules.

3. Unless the copyright owners and CATV owners could agree on a schedule of fees in time for inclusion in the new copyright law, the law would simply provide for compulsory arbitration of the fee question.

Broadcasters have lived up to all aspects of the compromise and expect the other parties to do likewise. Yet it appears that the CATV people are not supporting copyright legislation as described in the agreement. They appear to be turning their backs on the agreement now that they have received the distant signals provided for in the agreement. This distresses us greatly.

Obviously, Congress is not bound by an agreement entered into by private parties. But for years Congress implored the concerned parties to settle their differences. Indeed, the distinguished Chairman of this Subcommittee informed the FCC Chairman in January 1972 that the agreement was in the public interest and reflects a reasonable compromise of the positions of the various parties. We would hope, therefore, that Congress would respect the compromise agreement and incorporate its copyright provisions into the new copyright law.

We agreed to the compromise with our eyes open. Though under considerable pressure, we nevertheless knew what we were agreeing to and were prepared to live up to each of those agreements. We have not waivered, and will not. Unfortunately, the cable people seem determined to conjure up excuses for not sup

porting the copyright aspects of the agreement. Only Congress can set things right. We strongly urge incorporation of the copyright terms of the compromise agreement in S. 1361.

Thank you for permitting us to submit this statement.

STATEMENT OF ASSOCIATION FOR EDUCATIONAL COMMUNICATIONS & TECHNOLOGY, HOWARD B. HITCHENS, EXECUTIVE DIRECTOR, JULY 31, 1973

The Association for Educational Communications and Technology (AECT) represents eight thousand educators whose aim it is to improve the educational environment available to learners at all levels through the application of technology to instruction. Our members have a wide range of responsibilities including the study, planning, application and production of communications media for instruction. They are employed in schools and colleges; in the Armed Forces and industry; and in museums, libraries and hospitals. It is important to note that our members interpret educational technology as more than machines and equipment. Rather, it is a process, rooted in learning theory and communications research, that enables a learner to learn more effectively and efficiently. This basic assumption necessarily influences our position on the general revision of the Copyright Law (title 17 of the United States Code) and specifically on the issue of a general educational exemption.

Several bills have been introduced during the past ten years proposing revision of the 1909 Copyright Act. These bills have stimulated much activity within the educational community, as there are several aspects of copyright law revision that potentially have a great impact upon education—duration of copyright, the doctrine of fair use, and, the topic of the current hearings, a general educational exemption.

It is important to note that the whole issue of copyright law revision has caused two parts of the educational community that generally share similar objectives and concerns, and that usually maintain a symbiotic relationship, to appear as adversaries. These are the educators and the producers of educational materials. As one copyright attorney has said, "The fundamental issue is clear: [Educators] are primarily interested in availability [of materials] for use; authors and publishers are primarily interested in payment for use.'

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There is little doubt that the success of each group depends upon the support of the other. If educators do not utilize instructional materials, the producers surely cannot remain in business. The teacher, media professional and librarian create markets for an author's works and give them visibility. Likewise, in this day of individualized instruction, the open classroom, ungraded schools, and student self-evaluation, the successful educator-teachers, librarians, curriculum developers wants to utilize a wide range of learning resources. Certainly, when producers and users can act in concert, the student reaps the benefits. It is indeed unfortunate then, that a "we-they" atmosphere has developed where educational organizations and commercial producers "agree to disagree" on copyright issues.

The United States Constitution gives to Congress the power to grant copyrights. The concept of copyright was first developed with an eye toward protecting the public interest. "To promote the progress of science and the useful arts," Congress was empowered to grant to authors certain controls over their work— in other words, a copyright. As stated in studies prepared for the Senate Judiciary Subcommittee on Patents, Trademarks, and Copyrights :

As a condition of obtaining the statutory grant, the author is deemed to consent to certain reasonable uses of his copyrighted work to promote the ends of public welfare for which he was granted copyright.2 Congress is thus faced with maintaining a balance between providing for the compensation of the author and making information available to the public.

1 Eugene Aleinikoff. Copyright Considerations in Educational Broadcasting, (Stanford, California: ERIC Clearinghouse on Media and Technology), 1972, p. 1.

2 Copyright Law Revision, Studies Prepared for the Subcommittee on Patents, Trademarks, and Copyrights. Senate Committee on the Judiciary, 86th Congress, 2d Sess., Committee Print, Study 14, "Fair Use of Copyrighted Works," (by Alan Latman), p. 7.

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