COPYRIGHT LAW REVISION WEDNESDAY, MAY 14, 1975 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES, AND THE ADMINISTRATION OF JUSTICE OF THE Washington, D.C. The subcommittee met, pursuant to notice, at 10:10 a.m. in room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier [chairman of the subcommittee] presiding. Present: Representatives Kastenmeier, Danielson, Pattison, and Mazzoli. Also present: Herbert Fuchs, counsel, and Thomas E. Mooney, associate counsel. Mr. KASTEN MEIER. The hearing will come to order on the third morning of hearings on copyright law revision. The issue under discussion lends itself into equal division of time between those in favor and those opposed; each side will be invited to divide 30 minutes of testimony among its members, and you will be expected to stay within that time frame. This morning six national library associations have given their entire half-hour to Mr. Edmon Low. Thereafter four representatives of writers and publishers will share their 30 minutes in arguing the other side of the library photocopying issue. Furthermore, the Chair will announce that the chairman and perhaps another member of the committee will have to excuse themselves for the purpose of appearing before the Rules Committee on the question of the Parole Reorganization Act this morning, and the gentleman from California, Mr. Danielson, will preside during that period of absence of the Chair. Before introducing the first witness, I would like to yield to our Judiciary Committee colleague from Kentucky, Mr. Mazzoli, for the introduction of one of the witnesses. Mr. MAZZOLI. Mr. Chairman, thank you very much, I appreciate your willingness to yield today. I would like to just take this chance to introduce to you and your distinguished subcommittee a lady who is from my district and with whom I spend many hours on airplanes, flying back and forth from the District of Columbia to Louisville, our home. Mrs. Joan Titley Adams, Mr. Chairman, is testifying in your first panel today, and without taking any more of your valuable time, I would just like to commend her testimony because she is a professor at the University of Louisville, as well as being the librarian of the ( 183 ) Sciences Library. She has been in the Medical Library Association in virtually all of its positions, including the board of directors. She likewise holds positions in the University of Louisville on its faculty senate. And without necessarily knowing all the nuances of the bill before you, which is very complicated, I would like to commend her testimony. Thank you very much, Mr. Chairman. Mr. KASTENMEIER. Thank you for this introduction. I say to my colleague I am sorry we can't introduce all our witnesses as fully in terms of their biographies. The Chair would like to welcome Mrs. Adams and Mr. Low. I understand Mr. Low this morning will make the major presentation on behalf of the libraries. Mr. Low, you may want to introduce your other colleagues. You may proceed as you wish. TESTIMONY OF EDMON LOW, REPRESENTATIVE OF SIX LIBRARY ASSOCIATIONS Mr. Low. Thank you, Mr. Chairman. I am Edmon Low, and I will today present the views of the American library community as represented through six major library associations. With me are representatives of each of the six associations. I am happy to present to you Mr. Julius Marke, representing the law libraries and chairman of their copyright committee. Mr. McDonald, at my right, is the executive director of the Association of Research Libraries. At my left Mrs. Adams-and Mr. Mazzoli, we share your enthusiasm for Mrs. Adams and her work in our library community. Next is Mrs. Sommer, who is representing the Music Library Association, and who is the chairman of their copyright committee; and Mr. Frank McKenna, who is the executive director of the Special Libraries Association. And then with us we have the members of counsel, sitting behind us here, Mr. Sharaf, who represents the Harvard University Library; Mr. William North, representing the American Library Association, and Mr. Philip Brown, representing the Association of Research Libraries. Mr. KASTENMEIER. Thank you. Mr. Low. Because of our time limitation, with your permission, Mr. Chairman, I shall omit some of my testimony and ask that this statement be admitted into the record. Mr. KASTENMEIER. Without objection, your statement in its entirety will be received in the record. You may proceed, sir. Mr. Low. Thank you. We are here today to talk about library copying and the provisions of the copyright revision bill, H.R. 2223. I shall be presenting, so far as I am able, the concerns of all these various library groups. However, each of these organizations will also be filing a statement of its own, setting forth in greater detail its individual concerns about provisions of the bill. All of the representatives will assist me in answering particular questions you may have concerning our testimony and the issues raised. Although our testimony today is limited to library photocopying which is the subject of this hearing, there are other provisions of the bill which concern us, and about which we may be making further statements as other hearings are scheduled. I would like first to point out that, although this copyright revision bill has been under consideration for 10 years, the library photocopying issue is still an important unresolved subject. In brief, as we see it, a question which Congress and this committee must decide is whether libraries will be permitted-at no additional expense-to continue to serve the public by the long-standing practice of providing single copies of copyrighted material for users' research or study. It is an issue with direct and widespread impact on the general public and involves both the right of access to library materials and the cost of that access. In the past year there have been two major developments affecting this question. In the first case ever brought by a publisher, the Williams & Wilkins Co., against a library the courts have upheld the photocopying of single copies of copyrighted medical journal articles as being within the doctrine of fair use, and not constituting infringement of copyright. It is in part because this case consumed 7 years and major financial outlay that libraries are concerned about the second major development, which is the introduction last year into the Senate bill, without any hearing, of a new and undefined limitation on the rights of libraries; namely, the concept of "systematic reproduction" of either single or multiple copies of copyrighted material. Now when we talk about library copying, we are not talking about something for the benefit of libraries or librarians, we are talking about something that is carried on for the benefit of users of libraries who include citizens from all walks of life throughout the country. When we are talking about library copying practices, we are talking about the schoolboy in California who may need a copy of an article in the Los Angeles Times for a project he is working on in his ninth-grade class; or about a judge in the county court in Middlesex County, Mass., who may find he needs a copy of a law review article which bears directly upon a difficult question of law which has arisen. in the course of his work. Or about the doctor in downstate Illinois who has a patient with an unusual and rare disease and the only recent material to be found is contained in an obscure journal published in Sweden, and available only through the Regional Medical Library system, but which article may aid him in saving his patient's life. And we are talking about, even, a member of this committee asking the Congressional Reference Service of the Library of Congress for an article dealing with copyright. Or, we are talking about a musician who is preparing a scholarly article on the music of Mozart and needs. to take with him to study a copy of a portion of a recently edited score of one of Mozart's works with which he is concerned. The list is endless, but I wish to emphasize that we are talking about an issue that very broadly affects the ability of people in this country to make use of their libraries which are the repository and storehouse of man's knowledge. I should note here that copyright is not a constitutional right, such as trial by jury of one's peers. The Constitution simply authorizes the Congress to create such a right. It is therefore a statutory right, one created by law, which may be changed, enlarged, narrowed or abolished altogether by the Congress here assembled. It is a law enacted not for the benefit of an individual or a corporation, but for 57-786-76-pt. 1-13 the public good and with the purpose, as the Constitution expresses it, "to promote the progress of science and useful arts." Consequently, in revising the copyright law the problem for Congress is to design provisions which both encourage the creation of original works and permit the widest possible access and dissemination of information to the public; and, where these goals compete, to strike a balance which best serves the fundamental objective of promoting learning, scholarship, and the arts. I should like to go on to the top of page 5. At present I am director of the New College Library at Sarasota, Fla. New College is a small, but very fine, private college and its problems in this connection are typical of the two thousand small and medium-sized colleges throughout the country. While our library is liberally supported and spends every cent it can afford on periodical subscriptions, we cannot possibly have the large resources of a university like the one at Gainesville or at Tallahassee. Yet, our faculty members, if they maintain a good quality of teaching and do the research which contributes to it, must. have access by random photocopying at times to the larger collections in the State and elsewhere. It is the general experience of the library community that interlibrary loan encourages the entering of additional subscriptions by the library, rather than reducing the number, as is often charged by the publishers. It is a truism that a librarian would prefer to have a title at hand, rather than to have to borrow, even under the most convenient circumstances. Consequently, when the time comes around each year to consider the list of periodical subscriptions, the record of interlibrary loans is scanned and titles are included from which articles have been requested with some frequency during the year. While the situation varies, in our library the number is two; if we have had two or more requests for articles from the same title during the year, we enter a subscription. This not only indicates how the procedure can help the periodical publishers, but also indicates that if only one article, or none was copied from a title during a year, the journal could not have been damaged materially in the process. It is not only the small schools which would suffer if such photocopying were eliminated, however; the scholars at Wisconsin or Michigan would also be severely put to it to continue their research in the same way, and it is these scholars who account for the major writing for the scholarly journals. The journals themselves, therefore, have a stake in seeing this procedure continued in a reasonable way. The courts have long recognized that some reproduction of portions. of a copyrighted work for purposes of criticism, teaching, scholarship or research is desirable, and this judicial concept was incorporated in section 107 of the revision bill. Libraries have operated all these years under this principle, but it does lack the assurance of freedom of liability from harassing suits. This fair use concept is necessarily expressed in general language in section 107 of the bill. So a librarian is not able to feel sure until a court decides a particular case whether his actions, undertaken with the best of intentions, is or is not an infringement. This is pointedly illustrated by the recently decided and prior mentioned case of Williams & Wilkins. This suit was instituted in 1968 and now, only now, after years of litigation and expenditures of many |