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Mr. BRENNAN. I further request that the statements of all witnesses which are not read in full be printed in full in the body of the record, and that the record remain open until August 10 for the filing of supplementary statements to be printed in the appendix to the record.
Senator McCLELLAN. The Chair sees no objection to the request; unless there is objection the Chair will so order. What is the date?
Mr. BRENNAN. August 10.
It is desirable, Mr. Chairman, that the transcript be printed during the recess so that it is available.
Senator McCLELLAN. Does that give everyone plenty of time?
Senator McCLELLAN. Ten days, an opportunity to add, file additional statements or new statements if they like before we go to press.
Mr. BRENNAN. That will be fine.
Senator McCLELLAN. I think that would be all right. I see no objection to it.
Mr. BRENNAN. Mr. Chairman, as indicated in the hearing notice, these 2 days of hearings are being conducted under a time limitation. The subcommittee has allocated equal time to the principal representatives of the various points of view on five selected issues. I wish to indicate that time consumed in answering questions from the members of the subcommittee and counsel will not be charged against the time of the witnesses.
Senator McCLELLAN. What you propose is, if they are given so much time, the Senators or counsel can interrupt them for questioning, that that period of interruption of questioning will not be charged against the time allotted to them. Mr. BRENNAN. That is correct, Mr. Chairman.
Senator McCLELLAN. That gives them the full time allotted to them to use for themselves.
Mr. BRENNAN. The subcommittee this morning will consider the issue of library photocopying which relates to sections 107 and 108 of title I of the bill and also title II of the bill.
The first witnesses are on behalf of the Association of Research Libraries, to which 15 minutes has been allocated.
Dr. McCarty, would you identify yourself and your associates for the record ?
Dr. McCarthy. Thank you, Mr. Brennan.
Mr. Chairman, my name is Stephen McCarthy. My associates are, on my right, William Budington, president of the Association of Research Libraries, and executive director of the John Crerar Library in Chicago. On my left is Mr. Philip Brown, our legal counsel and second to the left is Mr. Howard Rovelstad, chairman of our copyright committee, and director of libraries at the University of Maryland.
Mr. Brown and I have prepared statements. Mr. Budington and Mr. Rovelstad will participate in answering questions if there are any.
Senator McCLELLAN. Very well.
STATEMENTS OF DR. STEPHEN A. MCCARTHY, EXECUTIVE DIREC
TOR, ASSOCIATION OF RESEARCH LIBRARIES; AND PHILIP B. BROWN, COUNSEL; ACCOMPANIED BY WILLIAM S. BUDINGTON, PRESIDENT, ASSOCIATION OF RESEARCH LIBRARIES; AND HOWARD ROVELSTAD, CHAIRMAN, ASSOCIATION OF RESEARCH LIBRARIES COPYRIGHT COMMITTEE
Dr. MCCARTHY. My name is Stephen McCarthy. I am executive director of the Association of Research Libraries, an organization of the principal university and research libraries of the country. We appreciate this opportunity to present the views of the association on copyright revision bill, s. 1361.
Mr. Chairman, the Association of Research Libraries wishes to recommend to the committee an amendment to section 108(d) of S. 1361, in the form in which it was submitted to the staff of the committee during the past week. A copy is attached to this statement.
Senator McCLELLAN. This copy of the proposed amendment will be inserted in the record at this point.
[The information referred to follows:]
AMENDMENT TO COPYRIGHT REVISION BILL, S. 1361
Substitute for section 108(a) the following:
(d) The rights of reproduction and distribution under this section apply to a copy of a work, other than a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work, made at the request of a user of the collections of the library or archives, including a user who makes his request through another library or archives, but only under the following conditions :
(1) The library or archives shall be entitled, without further investigation, to supply a copy of no more than one article or other contribution to a copyrighted collection or periodical issue, or to supply a copy or phonorecord of a similarly small part of any other copyrighted work.
(2) The library or archives shall be entitled to supply a copy or phonorecord of an entire work, or of more than a relatively small part of it, if the library or archives has first determined, on the basis of a reasonable investigation that a copy or phonorecord of the copyrighted work cannot readily be obtained from trade sources.
(3) The library or archives shall attach to the copy a warning that the
work appears to be copyrighted. and renumber section 108(d) (2) to make it 108(d) (4).
Dr. McCarthy. Thank you, sir.
The purpose of the proposed amendment is to insure by specific legislative language that a customary, long established library service of providing a photocopy for a reader who requests it may be continued without infringement of copyright. Adoption of the amendment would remove the threat of suit against libraries arising out of varying judicial interpretations of what is or is not fair use. At the same time this amendment would assure libraries, which are public service agencies largely supported by public funds, that they can and should employ modern technology and methods in serving their readers. It should be emphasized further that this amendment does not seek to encourage or develop a new service. Instead, it seeks to assure beyond doubt or question the legality of a traditional service which was not challenged for two generations under the 1909 Copyright Law until a suit was brought by the Williams and Wilkins Co. against the National Library of Medicine several years ago.
The opinion of Commissioner Davis of the U.S. Court of Claims in the Williams and Wilkins case brings into question the fair use doc
trine as applied to library photocopying. Despite the several criteria of fair use which have been developed by the courts and which are expressed in section 107 of S. 1361, Commissioner Davis apparently disregarded all criteria except one and focused his attention on the loss of potential income by the copyright proprietor. In view of this opinion it is apparent that fair use can no longer be considered adequate assurance for the continuation of customary library services. In our judgment, the services of libraries to their readers are sufficient importance to society and to the nation as a whole to make it desirable to remove any doubts about the legality of a long established and much used service.
Section 108(d) (1) of S. 1361 requires the user to prove or demonstrate to the library that an unused copy is not available from a trade source. How does the ordinary reader do this? How does the library know that he has done it? How does the library evaluate the evidence? Questions such as these and others will inevitably arise, if 108(d) (1) is permitted to remain unchanged in the copyright revision bill. Observance of its requirements will impose a substantial added burden on libraries and on library users and thus will impede access to information. The reader who is from a distant library seeking to obtain library materials through interlibrary loan will be particularly penalized by section 108(d) (1) since he will not be in a position easily and without substantial loss of time to comply with the requirements of 108(d) (1).
Library support, both locally and at the Federal level is limited. Appropriating bodies, including the Congress, have adopted measures designed to encourage the sharing of library resources. This is consistent with traditional library practices. The revision bill without the amendment we recommend would raise doubts about the continuation of this practice because photocopying has been one of the accepted ways of sharing scarce library resources.
The requirements of the bill in its present form would also add substantially to the expenses of libraries because decisions regarding photocopying requests could only be made by highly qualified personnel.
It may be noted further that the copyright laws of most foreign countries contain a specific provision permitting library photocopying for purposes of personal study and research.
Revision of the copyright law has been under way for a period of years. In that time, copyright proprietors have repeatedly stated that the library photocopying was causing serious financial damages to their enterprises. No evidence to support this contention has been presented. In the absence of evidence, it seems fair to conclude that the only studies which have been made have indicated that if damage exists it's very slight.
For these reasons, the Association of Research Libraries recommends the adoption of the proposed amendment as a means of assuring library users of the continuation of an important service.
Thank you for your attention. Our legal counsel, Mr. Brown, will now discuss briefly some of the legal aspects of library photocopying and the proposed amendment.
Thank you, Mr. Chairman.
Senator MCLELLAN. State very succinctly what you do now, what is the practice you want to continue.
Dr. MCCARTHY. What we do now, sir, is that many libraries provide a photocopying service. A reader may request a photocopy of pages of a book, of a periodical article or a portion of an article, and this is supplied in a single copy for the individual's personal use. This is done both for a person who is physically present or for one who applies through interlibrary loan.
Senator McCLELLAN. Any charge made for it?
Senator McCLELLAN. We now have the Library of Congress furnish us copies. We can get copies of documents and articles and materials. I do not think we pay any copyright fee. I do not know how it operates.
Can anyone abuse this right under present practices by getting material and profiting from it, commercializing it in any way without paying the copyright fees?
Dr. MCCARTHY. Not to my knowledge, sir.
Senator McCLELLAX. Is it the allegation that they get no copyright fee on the one copy that you give to a single customer, single patron.
Is that it?
Dr. McCARTHY. That is what was alleged in the Williams and Wilkins case, that Williams and Wilkins would have had a certain income if they had been paid each time the National Library of Medicine had copied an article from one of their journals.
Senator MCCLELLAN. Well, would you indicate from your experience, observations, how much additional income if you had to pay a copyright fee on each copy that you make for individual patrons, how much it would amount to in an average library?
Could you give us any thought on this?
Dr. MCCARTIY. Over 50 percent of the material copied is not under copyright at all, and the rest is spread over such a large number of publications and publishers that to reimburse publishers for making the copies would require a very elaborate bookkeeping system. It would actually-a publisher is responsible for the statement-cost dimes to collect pennies.
Senator McCLELLAN. A publisher has made that statement? Dr. McCarthy. That is right, Mr. Curtis Benjamin formerly of McGraw-Hill. Senator MCCLELLAN. Senator Burdick. Senator BURDICK. Yes. Your objection is to subsection (1) of 108(d).
Let's give you an example. Suppose I go to the public library at Williston, N. Dak., and I want to get page 50 out of a book on zoology dealing with snakes, and I go to the library and I say I want a copy of page 50 on snakes, and the librarian says to me. I think that is available in the publishing house in New York or at the Library of Congress.
Is you read that subsection, if that was available as it says here, to be obtained at normal price, an unused copy cannot be obtained-well, it can be obtained at the Library of Congress or can be obtained in New York—would you construe this section to mean that the library at Williston could not copy that page 50.
Dr. MCCARTHY. Yes, sir; that is right.
Dr. McCARTHY. I would now like Mr. Brown to present his testimony.
Senator McCLELLAN. Mr. Brown.
Mr. Brown. Mr. Chairman, I would like to speak very briefly on certain legal points that have arisen recently.
First, my name is Philip B. Brown. I am a partner in the Washington law firm, Cox, Langford & Brown, and counsel to the Association of Research Libraries.
The major legal development on this subject in recent years, apart from the continuing activity of this bill in Congress, is the court case, Williams & Wilkins against the United States, pending in the Court of Claims.
The report of the Commissioner constituting the first decision of the case was filed in February of 1972. The case has been argued and briefed to the judges of the court, and is awaiting decision by the judges of the court at this time. The Commissioner held that photocopying of entire articles from medical journals by the National Institutes of Medicine at the request of doctors and medical researchers constituted infringement of copyright and he recommended that the court conclude, as a matter of law, that plaintiff is entitled to recover reasonable and entire compensation for infringement of copyright, the exact amount to be determined in later proceedings.
Subject to the outcome of the case now pending before the judges of the court, the main effect of the Commissioner's report on library photocopying is twofold: First, that such photocopying as was involved in the case constitutes a violation of the copyright proprietor's rights under 17 U.S.C., section 1, and, second, that such copying is not protected by the doctrine of fair use. If the Commissioner's report should be adopted by the court, the decision would constitute the first judicial interpretation of the 1909 act as it applies to library photocopying and an interpretation contrary to both the libraries' understanding of the meaning of the 1909 act and to the previously unchallenged longstanding photocopying practices of libraries.
These developments in our opinion underscore the importance of the libraries' request that Congress adopt a specific amendment to section 108(d) of the bill authorizing a library to make a single photocopy of an entire journal article at the request of a user without such a practice constituting an infringement of copyright.
Prior to Williams & Wilkins it could be argued that if libraries interpreted the 1909 act to authorize such copying and could point for support to the fact that the publisher had not challenged that interpretation and had even participated in a gentlemen's agreement for a period of years which ratified the libraries' practice, there was no need to give the libraries explicit statutory protection since the revision bill did not take away from libraries any rights which they then enjoyed under the 1909 act. Today, we submit that it is not possible to assert that position, and that the libraries' need for new explicit statutory protection for such photocopying is clear.
The amendment proposed by ALA and ARL, the two library organizations, is essential to permit a library to make a conv of an entire journal article for a user. Such an amendment would be fully consistent with the literal wording of all copyright statutes prior to 1909, and fully consistent with the interpretation placed on the 1909 act by users and publishers alike for about 60 years.