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In addition to adopting the specific photocopying amendment, we respectfully submit that Congress should also clarify and endorse the application of the doctrine of fair use to library photocopying practices. This is important both because the doctrine had not previously been judicially applied to library photocopying and because the report of the Commissioner in Williams & Wilkins, if allowed to stand, would raise serious doubt whether that doctrine could ever apply to library photocopying of an entire article, at least by most of the major libraries.
The Commissioner determined that the copying involved constituted wholesale copying, apparently simply because of the large number of individual requesters for each of whom the library made a copy, and the Commissioner also referred to the facts that on some occasions, the same requester could receive a second copy at a later date, and that the library furnished a copy of the same article to each of a number of different requesters.
Now, if these facts constitute wholesale copying, sufficient to a court to deny a library the defense of fair use, it would appear that the defense would not be available to any large library, such as any of the major research libraries of this country, simply because the total number of patrons of each of these libraries would be so numerous as to fall within the Commissioner's term “wholesale," and thus go beyond fair use.
In order to restore the application of fair use consistent with the intent of the bills previously considered by this committee in recent years, we believe it is essential that Congress reject the interpretation given to fair use by the Commissioner in the Williams & Wilkins case and that Congress further declare that the longstanding practice of libraries of making a single copy of copyrighted material, including an entire journal article, is within the meaning of fair use.
Accordingly, we are requesting two things. First is the specific amendment that Dr. McCarthy referred to in the record, the amendment to section 108(d), and this amendment is proposed by the Association of Research Libraries, and by the American Library Association. The second is some clarification that fair use applies to the normal library practice of making a single photocopy of copyrighted material for a user.
Now, those practices would include making a copy of an entire article or just general photocopying practices of libraries as they have been traditionally employed for users' requests. We submit these are essential to permit libraries to continue to serve the needs of scholars, and as Dr. McCarthy has pointed out, we submit that there is no evidence of damage to publishers resulting from this practice. We believe it is necessary, particularly in view of the present posture of the law on this subject, the posture of the report of the Commissioner in the Court of Claims case, and the fact that the court has not yet decided the case, that if Congress enacts a new law on a subject that the law should be clear and certain so as to avoid ambiguity, and we think that the need for clarity and certainty is underscored by the penalties that are provided in the bill which are sufficiently serious so without clear protection a librarian might very well refuse to make a copy of a journal for a user.
We think that the failure to be free to do that would run the risk of failing to give services to the patrons of libraries, to the great detriment of research and scholarship.
Senator McCLELLAN. Mr. Brown, I note on page 3 you point out that for many years the practice was such, somewhat of a gentlemen's agreement, and you proceeded as you do now and you felt there was no need for protection.
Is that because no claim at that time was being asserted by the copyright holders ?
Mr. Brown. That is right, Mr. Chairman. There was no lawsuit brought until the Williams & Wilkins suit in very recent years, the one that is still pending and while there was considerable discussion, this had not been the problem.
I might point out that in that connection
Senator MCCLELLAN. When did this if there was a change in the attitude with respect to this practice of the copyright holders—when did that occur, and how did it develop?
Mr. Brown. Well, I suppose the position of the copyright proprietors as they have testified before this committee on previous bills speaks for itself, but this Court of Claims case is the first legal opposition of which I am aware, and that case has been pending for the past 3 or 4 years. It still is pending.
Senator McCLELLAN. Has any effort been made otherwise to assert a claim against libraries prior to this suit?
Mr. Brown. Not that I know of, but perhaps my colleagues can expound.
Dr. McCARTHY. I do not believe so, Senator McClellan, no legal action. There may have been some discussion but no legal action has been taken.
Senator BURDICK. Well, this presents some intriguing possibilities, getting back to this Library of Congress thing that is being used.
Well, certainly under this section (d) (1), that would also apply to the Library of Congress, would it not? If the book is found in the Library of Congress and someone asks for a copy of it here on the Hill, would that not be the same condition as the library in Williston, X. Dak.?
Mr. Brown. Yes, sir.
Senator BURDICK. In other words, the material I am getting then from the Library of Congress from time to time would be illegally given to me under this act?
Mr. Brown. Unless they meet the requirements of this provision.
Senator BURDICK. Well, suppose they say you can get that in New York at the publishing houses. I could not get it then, could I?
Vr. BROWN. I do not believe so.
Senator BURDICK. We are constantly getting material from the Library of Congress, and I am sure a lot of it is covered by copyright. This section forecloses that.
Mr. BROWN. Yes.
Mr. Brown. I do not know of any instance in which the library has any desire or wish to copy a total book. The dispute has centered around whether the library has the right to make a photocopy of a total single article in an issue of a journal such as the medical journals that are involved in this lawsuit, and there, if the library has the right to make a copy of a single article, an entire article, for a user, that meets the normal request. I do not believe there ever is a request for a library to copy an entire issue of a medical journal, because it would normally contain several different articles on several different subjects.
Senator BURDICK. Well, you are dealing now with what happens, what is practical. I am getting to what is possible. We have to think of that, too.
Under your language, and under your contention, could an entire book be copied? Could it be?
Dr. MCCARTHY. No-the second clause of our amendment, Senator Burdick, following page 4 of my statement, reads, 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.
Senator BURDICK. Well, that is what you are saying now, in the present act, in the proposal.
Dr. MCCARTHY. It is the distinction between a complete book, sir, and a periodical article.
Senator BURDICK. No. You said I will read it with you. "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 cannot be obtained elsewhere” and so forth. That is what the proposal said.
In effect, we will not make a copy if you can obtain it elsewhere.
Dr. MCCARTHY. Item one, sir, sub one in our amendment is in a sense the critical part of it.
Senator BURDICK. Well, you get into a phasey area there of more than a relatively small part of it, et cetera, et cetera.
Dr. MCCARTHY. Yes, sir. Economies operates there. The cost of copying an entire book is more expensive than to purchase it, and the form in which it comes out is less satisfactory to use. Libraries, as they are operating now, do not make copies of complete books.
Senator BURDICK. But the thrust of the proposed amendment, the proposal that we have before us today, you would have no quarrel with that if applied to the total work.
Mr. Brown. Senator, may I respond to that?
Taking the two paragraphs separately, (d) (1) is talking about a complete article from a journal, and that right is the new, important point that is being requested by this amendment, so that it will be clear that a library can make a single copy of one article in a journal for a user without violating the copyright.
Now, the second paragraph says that if they cannot get the work from trade sources, then they can make a copy of the whole thing, or a small part of it, and there, more than a relatively small part of it, rather, and there the thought is that perhaps fair use would cover a relatively small part of it, and there may not be any need for that being specifically covered, but the whole thing, or more than a relatively small part of it would not necessarily come under the fair use, and therefore should be
Senator BURDICK. Well, that is what I am saying. (1) of (d) would apply then where you had a substantial part of the book or a total book. You are in agreement on that.
Mr. Brown. (1) of (d) is talking about one article or other contribution to a copyrighted collection or a periodical issue to our proposed amendment. I think that is the confusion.
I was speaking from the amendment.
Senator BURDICK. You were saying this idea that you cannot copy where it is available elsewhere, that you would agree that it would apply if it was a total work or a substantial part of a total work. Mr. BROWN. Yes. Senator BURDICK. That is all. Senator McCLELLAN. Counsel, do you have any questions? Mr. BRENNAN. Yes, just one or two question, Mr. Chairman.
Mr. Brown, I would like to come back to Senator Burdick's illustration about a copy of a single page on snakes. You responded to that solely in terms of section 108 of the bill.
Would you answer Senator Burdick's question taking the bill as a whole, including section 107 and this subcommittee's interpretation of fair use?
Mr. Brown. I would say that apart from what change is in the process of being made in the concept of fair use by pending court cases which we must always except out because this process is going on independently, that would probably be held to be a proper activity within fair use under 107.
Mr. BRENNAN. So your answer to Senator Burdick, then, is yes, it could do what he indicated.
Mr. Brown. I would say probably, Senator, but please bear in mind that fair use is a defense meaning that if somebody comes and sues you for doing it, you are then entitled to raise a defense to show that you were within the law in what you did. We still face the problem of interpretation on the part of the librarian who has to decide whether what he is doing is so totally, clearly all right that he is not going to be sued, or if he is sued, that he can afford to defend, and that defense will probably help him win it.
Senator McCLELLAN. In other words, you think that the fair use requirement is something that you cannot determine, the librarian cannot determine whether he comes within the purview of fair use when he performs or makes available copies, that he is always subject to maybe making a mistake that would make him liable?
Mr. BROWN. That is right, Mr. Chairman.
Senator McCLELLAN. You do not know how to interpret fair use in every instance.
Mr. Brown. I would think, Mr. Chairman, in view of the fact that it has been the subject that has been given considerable consideration by this committee for some time, and still is, that the librarian would consult counsel and would ask'if can you do this, and they might establish some kind of ground rules as to what they think they can or cannot do, but he would not have a clear answer without legal advice.
Senator McCLELLAN. I guess you also agree that it is very difficult, the whole subject is very complex, and it is most difficult to provide even by rules, regulation, or even by statute, clarification about which there could not be different interpretations.
Mr. Brown. That is right, Mr. Chairman.
Mr. Brown. It is in very large measure, for that reason, that we stress the great need of libraries to help clear that.
Senator MCCLELLAN. But we have to go as far as we can toward making it certain, as far as what we can do and we cannot do.
Mr. Brown. Yes, sir. It is an important that the bill go as far as it can to make it clear and certain that libraries can make a single photocopy of an entire journal article, for example, or of small portions of works for users as they have always done.
[The prepared statements of Stephen A. McCarthy and Philip B. Brown on behalf of the Association of Research Libraries follow:] STATEMENT OF STEPHEN A. McCARTHY, EXECUTIVE DIRECTOR,
ASSOCIATION OF RESEARCH LIBRARIES Mr. Chairman, 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 the Copyright Revision Bill, S. 1361, and we ask that this statement be made part of the official record.
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.
Mr. Chairman and members of the Committee, the purpose of the proposed amendment is to ensure 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 Company 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 doctrine 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 customery library services. At best, fair use is a de. fense in case of a suit. The services of libraries to their readers are of 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. At the very least, this requirement will cause delays and hang-ups in service, at a time when the pressure for prompt service is very great.
While it is true that section 108(d) (1) may not affect the library user who is physically present in the library because he can make a copy for himself on a self-operated copying machine, it will impose a serious handicap on a reader from a distant library who is seeking to obtain library materials through interlibrary loan. This reader will be dependent on the staff of the library from which the loan is requested. The requirements placed on the reader and the library by this section would be in many cases result in denial of the request because compliance with the request might constitute an infringement of copyright and be subject to a suit for damages. It is clear that 108(a)(1) would thus have the effect of penalizing the user who does not have direct, personal, physical access to a large comprehensive library. The number of library users who do not have such access is substantial.