satisfied with himself, one cannot truly say that he is "improved." During a visit with the writer last summer, Dr. Kho, of Jakarta, Indonesia, commented on the fact that, by using the criteria which we use in this country for diagnosing mental illness, probably 80 percent of certain Javanese peoples would be regarded as psychotic, since they are in almost continuous communication with the "spirit world" around them, and what we term "auditory hallucinations" are practically "daily occurrences." Someone may feel that this case is different, because auditory hallucinations are an accepted cultural phenomenon in this particular society but are not so in our own. This is a dangerous presumption, since it makes the average and the normal equivalent.

By this reasoning, if hallucinations occur frequently in a particular society, they are therefore normal; if they are rare, they are, for this reason, pathological. The more crucial fact would seem to be that individuals in this particular Javanese culture are not disturbed by their hallucinations. Judgment as to the psychological state of an individual in any culture is really most involved with how he or she responds to his own behavior (hallucinations in this case). At the present time, I have a patient who has occasional hallucinations, recognizes them as such, regards them as a "bloody nuisance" but is able to function in a reasonably adequate social fashion and is not too dissatisfied with how he feels about himself. As an intern at St. Elizabeths Hospital in Washington, I was much impressed by the decision of the staff to discharge a woman who quite freely admitted her auditory hallucinations (which she did not recognize as such). The voices, she explained, made unpleasant remarks about her, and the key question upon which her discharge rested was, "What are you going to do about this?" She smiled very good-humoredly and replied, "Nothing. I call myself worse names." To the best of my knowledge she is still functioning usefully as a seamstress and is enjoying life more than a good number of people who have never been in a hospital.

If one were to admit hallucinations as necessary for rating psychological improvement it would be necessary to consider pseudohallucinations, hypnagogic states, and a whole area much less clearly defined. In view of the variety of present psychiatric theories, one would then have to move into areas of jurisdictional dispute in which perhaps a patient would be regarded as unimproved unless he had resolved his Oedipal conflict-or some other kind of conflict. Judgments as to whether "dependency" is present to a pathological degree and whether, if it is, it is a good or a bad thing, mire one in a hopeless morass. Therefore, until our psychological theories are more lucid and better validated, it seems wiser to remain clear of such entanglements although work should certainly be pressed with maximum effort to bring a happier day to pass.

What is important is not what the psychiatrist or psychologist quite properly labels as "psychopathology" but how the patient reacts to such conditions. The psychiatrist may decide that the patient is unhappy because he is not able to tolerate his dependency on his wife. He would then be improved, either if he is no longer dependent, or if the dependency no longer disturbs him. This does not mean that we are depending on dependency to make a judgment of psychological improvement since this may exist only in the mind of the psychiatrist or social worker and not in the patient's mind (either conscious or unconscious). All one really needs to know is that the patient is less dissatisfied with himself than he was formerly.

By this proposal, the only one who can truly determine the amount of psychological improvement is the patient himself. This is in contrast to evaluation in the social area where the subject has no capacity to make observations about his adjustment. This procedure, of course, does not mean that one accepts the verbal statement of the patient that, "I feel wonderful," or, "I feel terrible." The observer is entitled to use any means at his disposal to evaluate how the patient does feel about himself; and suggestions have been made in the literature for the use of “objective instruments" which would help in determining this. In point of fact in private practice, this is almost invariably the touchstone which determines when treatment is to be terminated: The patient says that he feels better, and the therapist agrees that he probably does. When this feeling of well-being reaches a certain point, therapy almost always terminates, with the conclusion that there remain certain unsolved problems but that unless they provoke trouble in the future, the objectives of treatment have been accomplished.

Thus, what sounded like a radical proposal at the beginning turns out to be the tried and true empirical, heuristic technique which psychiatrists have been using all along as the index of psychological improvement. It is merely proposed

that we recognize that, in our present state of knowledge, this is one yardstick upon which all can agree without entering into doctrinaire disputes.

The final area, the somatic, can be dealt with rather simply. There are a number of physical conditions, such as mucous colitis, gastric ulcer, hypertension, and neurodermatitis, which may possibly be somatic expressions of psychological problems. The patient could also be spoken of as improved if there was a lessening of the degree of severity of these conditions.

Actually, the patient who is most improved would show improvement in each of the three areas where there was any difficulty to begin with. And one could speak of a more limited type of improvement if there had been pathology in 2 or 3 of the areas and if the patient had improved in one without getting worse in the others. If, however, improvement in one area were accompanied by increased difficulty in the other areas, it could not be regarded as the same kind of improvement as in the first two cases.

Using these admittedly crude and empirical techniques for evaluating improvement, objective tests could be evaluated as to how well they agreed with improvement measured in the form in which it is presently measurable. Eventually, and perhaps in the not-too-distant future, it would then be possible to substitute techniquts which were, actually, more scientific.

ACKNOWLEDGMENT

Appreciation is expressed to the writer's fellow members of the subcommittee on the evaluation of pharmacotherapy in mental illness, at a meeting held under the joint auspices of the United States Public Health Service, the American Psychiatric Association, the National Academy of Sciences, and the National Research Council-Division of Medical Sciences on September 21 and 22, 1956. Some of the proposals were borrowed freely from colleagues. The remarks of other participants provoked such violent disagreement from the writer that they, too, must be credited as a source of inspiration.

EXHIBIT 3

LEGAL PROBLEMS ARISING FROM QUOTATIONS OF SCIENTIFIC PUBLICATIONS
IN ADVERTISING MATERIALS

By George M. Chapman, of the New York Bar

We in America are an exceedingly name-conscious and expert-conscious people. Our unequaled means of mass communication-television, motion pictures, radio, newspaper, and magazine coverage-have, in combination, made us amazingly familiar with the identity of the leaders in the various fields of endeavor. Thus, in politics, the names of Dwight D. Eisenhower, Adlai Stevenson, Earl Warren, Walter George, Thomas E. Dewey, Estes Kefauver, Averell Harriman are a commonplace in most households. Merely to mention another category of our national life-sports-is to summon to mind the names of Duke Snider, "Hopalong" Cassidy, Sam Snead, and many others. Dr. Paul Dudley White has achieved the same sort of fame in the medical profession. Also, there is almost a cult of "the expert.' If an expert says that a thing is so, particularly a thing within his own sphere, or even in a wholly unconnected area, much weight is uncritically attached to his views. Presumably, he has the facts. We virtually reverence worldly success and the attainment of position. There is an almost religious admiration for the prominent scientist, writer, industrial captain, labor leader, movie star, or athlete. Complicating this is what I would call an undiscriminating deference to the views of such figures. Thus, some are unaccountably impressed that movie stars support various candidates for President; that Stan Musial likes a certain breakfast food; that the late Professor Einstein disapproved the conduct of certain investigative committees of the Congress; or that George Meany is against the Bricker amendment.

The existence and significance of these phenomena have not gone unnoticed. Our great manufacturers and the advertising agencies who proclaim the virtues of their products have long vied in securing the public endorsement of those whose artistic or athletic achievement, scientific reputation, heroic deeds, or political prominence have endeared them to the great bulk of our population. A generation ago testimonials for proprietary medicines were commonplace. Although such lay testimonials are no longer in vogue, drug manufacturers increasingly rely upon outside sources to further the sales of their products.

Here the stress has been upon the statistical results of various surveys, some conducted by disinterested agencies; discussion of various products' ingredients and why they confer a particular excellence; and either anonymous or attributed medical or scientific comment. We are concerned here only with the use of the last-mentioned device-attributed medical or scientific comment-so widely used in the promotion of pharmaceutical and, sometimes, proprietary drugs. To what extent, if any, is the manufacturer of a drug product liable to the author of an article or comment in a scientific journal wherein such product is a subject of discussion? What is the liability for the unauthorized verbatim or summary reproduction, in whole or in part, of such discussion, this reproduction occurring in advertising "fliers" or other such mediums circulated by the manufacturer to the medical profession, retail pharmacists, or the general public?

The manufacturer can use any of several techniques in invoking attributed medical or scientific comment: (a) Exact reproduction, either lengthy or brief; (b) summary reproduction; (c) selective reproduction, from which any words of criticism or qualification have been excised. Always, however, and no matter the dignity of the level to which directed, such material is used for advertising purposes. It is this use for commercial exploitation that gives rise to legal liability.

A survey of the pertinent statutory and case law leads to the inevitable conclusion that, no matter which of the foregoing techniques is used in a particular instance, a manufacturer who culls scientific journals for favorable references to his drug products and then reproduces such references for advertising purposes, without the consent of the author, runs a great risk of liability under both the law of copyright and the doctrine of right to privacy. Both of these branches of the law are highly practical in their origin and application. Both accord well with our traditional emphasis on individual initiative and property right. We shall examine these possible bases of liability separately.

a. Statutory

1 THE LAW OF COPYRIGHT

Simply put, the great purpose of a copyright is to secure to authors and artists the financial fruits of their own mental labors. This concept has its roots in the early history of our law, and has been nurtured and expanded with the development of our jurisprudence. It recognizes the truism that man is an acquisitive being and will give of himself more fully to the extent that he sees a lasting material enrichment in prospect. Thus, the report of the House of Representatives, discussing the Copyright Act of 1900, states:

"Not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given. Not that any particular class of citizens, however worthy, may benefit, but because the policy is believed to be for the benefit of the great body of people, in that it will stimulate writing and invention, to give some bonus to authors and inventors."

The conferring of copyright also stems from a recognition that a spirit of essential fairness demands that the creator is entitled to some reward for the labor of creation. Thus, one textwriter comments: 2

"It seems that from the time 'whereof the memory of man runneth not to the contrary' the author's right to his manuscript was recognized on principles of natural justice, being the product of intellectual labor and as much his own property as the substance on which he wrote it. Blackstone (2 Com. 405) associates it with the law of occupancy, which involves personal labor and results in 'property,' something peculiarly one's own. *** But ages before Blackstone, an Irish king had enunciated the same principle in settling the question of property rights in a manuscript: "To every cow her calf.'”

In 1710, at the instigation of the London publishers comprising the Stationers Co., the British Parliament gave statutory recognition to the rights of authors by the enactment of the celebrated statute of Anne.3

Prior to the adoption of the Constitution of the United States in 1787, our National Government had no power to act in the premises but, in May 1783, the States were advised to pass acts securing copyrights for 14 years. Most of the Thirteen Original States, including Massachusetts, New Hampshire, and

1 Lin Yutang, Between Tears and Laughter, Blue Ribbon Books (1943), pp. 76–77, 95-98; Shaw, Preface to St. Joan; cf. Landis, the Administrative Process, Yale University Press (1938). 2 Howell, The Copyright Law (1942), p. 1.

38 Anne c. 19 (1710).

New York, passed such private acts. When our Federal Constitution was drafted, the following grant was inserted among the powers of the Congress (art. I, sec. 8, clause 8): "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

In 1790, the Congress of the United States passed a Federal act which made the separate acts of the States unnecessary. Various acts were subsequently passed by the Congress. Finally, in 1909, a new copyright code was enacted, repealing all previous legislation and providing comprehensively for the whole subject of copyrights, including literary, dramatic, musical, and other rights. It is well recognized that the two major purposes of the Copyright Act are (1) to secure to the author, or his successors in interest, a monopoly, more or less in the nature of a reward for his genius and industry, as well as for the encouragement of others, similarly as in the case of patents; (2) to give notice to the public that the author or other owner has not abandoned the child of his intellect, or dedicated it to public use.

Compliance with the copyright statute, so as to enjoy its protection, is relatively simple. All that the author need do is first to publish the work with notice of copyright affixed to each copy. Two complete copies of the best edition then published must be promptly filed with the Copyright Office in Washington, D. C. Upon payment of a nominal fee, the Copyright Office will then issue a formal certificate of registration.

Compliance with the copyright statute gives the author a bundle of rights, the chief of which is the exclusive right, "to print, reprint, publish, copy, and vend the copyrighted work * * *.”5 And the author who has copyrighted his work has a formidable armory of weapons with which to punish any infringer. One guilty of copyright infringement may be enjoined from such conduct in the future; made to pay damages and profits; and to deliver up on oath for destruction all the infringing copies or devices, as well as all plates, molds, matrices, or other means for making such infringing copies. Thus, the civil penalties for copyright infringement are quite severe indeed. But added thereto is the following criminal sanction:

7

"Any person who willfully and for profit shall infringe any copyright secured by this title, or who shall knowingly and willfully aid or abet such infringement, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment for not exceeding one year or by a fine of not less than $1,000. ***"

So copyright infringement is an offense not lightly to be committed.

Copyright protection is, however, as we all know from our own experience, not absolute. To cite but one instance, the book review columns of our newspapers and magazines are replete with quotations or paraphrases of material from new publications. This is an illustration of the doctrine of "fair use," a recognized exception to the monopoly conferred by copyright. The doctrine is the resultant of the interplay of two polar principles: On the one hand, to encourage initiative and to award it appropriately, no privilege granted to others than the copyright owner must be so extensive as to permit the appropriation of his labor or the diminution in value of his work. On the other hand, public policy demands that the advancement of learning not be hobbled: that scolars can freely consult and build upon the work of their predecessors. This principle has particular force where scientific works are concerned and is given special deference by the courts in that situation.

The doctrine of fair use, then, is a compromise between two conflicting and compelling needs of our society. It is a practical doctrine, based on pragmatic considerations. Its applicability to any individual case is shifting and uncertain. Only general criteria can be given. The courts have repeatedly emphasized that whether a particular use of a copyrighted article without permission of the owner is a fair use depends on the circumstances of the particular case. Here are some of the factors that have been considered: It has been said

8

See Globe Newspaper Co. v. Walker, 210 U. S. 356, 28 Sup. Ct. 726, 52 L. Ed. 1096 (1908); Bauer & Cie v. O'Donnell, 229 U. S. 1, 33 Sup. Ct. 616, 57 L. Ed. 1041 (1913); Caliga v. Inter Ocean Newspaper Co., 215 U. S. 182, 30 Sup. Ct. 38, 54 L. Ed. 150 (1909); Wheaton v. Peters, 8 Pet. 591, 8 L. Ed. 1055 (1834).

5 17 U. S. C. 1 (a).

17 U. S. C. 101.

717 U. S. C. 104.

8 See, e. g., Matthews Conveyer Co. v. Palmer-Bee Co., 135 F. (2d) 73 (C. C. A. 7, 1948) ; Karll v. Curtis Pub. Co., 39 F. Supp. 836 (D. Wis. 1941).

that the privilege accorded to a subsequent writer must be such, and such only, as will not cause substantial injury to the proprietor of the first publication; that fair use is not determined by quantity alone; 10 that the court must look to the nature and objects of the selections made, the quantity and value of materials used, and the degree in which the use may prejudice the sale, diminish the profits, or supersede the objects of the original work; that the purpose of the use and the identity of the user are significant; that where the unauthorized use is for advertising or purely commercial purposes, the doctrine does not apply or has only a limited scope.'

use.

13

12

11

This last factor, unauthorized use of copyrighted material for commercial gain-in advertising-is of great and growing importance in the doctrine of fair And it is always present because advertising leaflets disseminated by pharmaceutical manufacturers, whether to physicians only or to the public generally, are essentially intended to stimulate the sale of the product involved. Though there is concededly a subsidiary scientific or educational purpose, the quest for commercial gain is predominant and is the principal motivating factor prompting such use.

Two cases involving quotations from scientific treatises in advertising material are worthy of somewhat extended treatment. Henry Holt & Co. v. Liggett & Myers Tobacco Co.1 was decided in 1938 by the highly respected Federal Judge Albert B. Maris, then a United States district judge and now an appellate Federal judge. In that case, one Dr. Felderman had written a book, published by the plaintiff, entitled "The Human Voice, Its Care and Development." After the publication of this book, Liggett & Myers Tobacco Co. published a pamphlet entitled "Some Facts About Cigarettes." Under the heading "Do Cigarettes Affect the Throat?" the following appeared:

"Dr. Leon Felderman, noted otolaryngologist, Philadelphia, is quoted (1931) as follows:

15

"Statistics have it that 80 percent of physicians are smokers. *** It appears unanimous that smoking is not nearly so injurious as overeating. *** From my experience with ear, nose, and throat cases, I firmly believe that tobacco, when properly used, has no ill effect upon the auditory passages.' This was held not to be a fair use of Dr. Felderman's book, the court saying: "Its publication was not one in the field in which Dr. Felderman wrote, nor was it a scientific treatise or a work designed to advance human knowledge. On the contrary, it is clear that its pamphlet intended to advance the sale of its product-Chesterfield cigarettes-a purely commercial purpose. It cannot be implied that Dr. Felderman consented to the use of his work for such a purpose." A decision rendered this year, Loew's Incorporated v. Columbia Broadcasting System contains a very scholarly review of the cases by Federal Judge James M. Carter, and summarizes the law as follows: "

16

"Criticsm is an important and proper exercise of fair use. Reviews by so-called critics may quote extensively for the purpose of illustration and comment.

"As we draw further away from the fields of science or pure or fine arts, and enter the field where business competition exists we find the scope of fair use is narrowed but still exists.

"A synopsis of an opera or indexes of a copyrighted property may be properly made under the rule of fair use. The use of a copyrighted credit book for the purpose of ascertaining the name of persons and corporations engaged in business for use in another's work is not infringement.

"On the other hand, the taking of word lists, amounting to less than 15 percent of the printed matter, from French language books and adding thereto, when both 'books met exactly the same demand on the same market' was an unfair use, and the taking of three sentences from a doctor's copyrighted medical work by a tobacco company to advertise its cigarettes was not a fair use. Where a newspaper used in an article, factual material taken almost verbatim from the

Sampson & Murdock Co. v. Seaver Radford Co., 140 F. 539 (C. C. A. 1, 1905).

10 American Institute of Architects v. Fenichel, 41 F. Supp. 146 (S. D. N. Y. 1941).

11 Karll v. Curtis Pub. Co., 39 F. Supp. 836 (D. Wis. 1941).

12 Amdur, The Law of Copyright, ch. 22, and authorities cited.

13 Henry Holt & Co. v. Liggett & Myers Tobacco Co., 23 F. Supp. 302 (E. D. Pa. 1938). 14 23 F. Supp. 302 (E. D. Pa. 1938).

15 23 F. Supp. 302, 304.

16 131 F. Supp. 165 (S. D. Cal., central division, 1955).

17 Pp. 175-176.