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very core of the Constitutional provision for copyright protection, and that the need for such protection is a direct consequence of the need to assure continuance of intellectual creativity, a function which cannot be performed by a committee but only by an individual.
On behalf of the Association, and also speaking to some extent for the other proprietary owners here assembled, my purpose is to reinforce support for the present language of Sections 107 and 108 of H.R. 2223, which Mr. Lieb has addressed in some detail. Mainly I will summarize our recent experience with the library community in seeking to be responsive to pointed suggestions from both the House and Senate Judiciary Committees.
The Senate report accompanying S. 1361 expressed the belief that Section 108 provides “an appropriate balancing of the rights of creators and the needs of users"; at the same time, recognizing the complexities, the report urged the parties-in this instance authors, publishers and librarians--to meet together directly in order to develop more precise photocopying guidelines for "fair use", and also to develop workable clearance and license arrangements for copying beyond fair use. This urging by the Senate Committee repeated a similar proposal by the House Judiciary Committee in 1967. Responsive to that earlier proposal, publishers and authors met with librarians in 1972 and again in 1973 for discussions that became known, somewhat grandiloquently, as the Cosmos Club and Dumbarton Oaks talks. The formula evolved at the Cosmos Club was that, if reprints of a journal article were readily available from the publisher or his agent, the library would refrain from photocopying of its own. The formula evolved at Dumbarton Oaks was that a journal publisher would encode the front page of each journal article with a serial number and a reprint price, and that a library making a copy thereof would so advise a clearinghouse operated by the publishers. At quarterly or semiannual intervals, the clearinghouse would bill the library for the aggregate royalty charges and would then distribute the proceeds to individual publishers. While both the Cosmos and Dumbarton efforts were deemed feasible by the library participants, they were later both shot down by officials of the several library associations.
Since November 1974, the publishers have again been negotiating with the librarians under the joint sponsorship of the Register of Copyrights and the Chairman of the National Commission on Libraries and Information Science. Eight meetings of a twelve-man working group were held between early December 1974 and mid-April of this year. I regret to say, Mr. Chairman, that there has not been much progress to date, chiefly because the librarians have refused to accept either the Senate bill or the guidances suggested by NCLIS and Ms. Ringer as in any way a limiting frame of reference. We have asked them, for example, to join with us in defining typical situations of two kinds : (a) those that would clearly involve fair use copying, and (b) those that would clearly involve systematic copying beyond fair use thereby requiring permission and royalty payment. Their consistent reply has been that they know of no copying done by libraries which extends beyond fair use.
I suggest. Mr. Chairman, there are two possible explanations for this unforthcoming attitude. Either the library community as a whole is still attempting to secure total exemption from copyright, and expects to get its way with the Congress ; or the attitude here expressed reflects a minority view within the library community and is not therefore representative of the whole. In this latter connection, I must say that we are struck by the difference in the attitudes we have found among local librarians and those expressed by the official spokesmen of library associations in Washington. In the field, we have encountered widespread sympathy for and understanding of the basic concept of copyright and of the need for copyright protection, accompanied by a felt need for guidelines that will more precisely determine the dividing line between fair use and infringement.
I would like to make brief mention in this same context of the Commission on New Technological Uses of Copyrighted Works which was established by law on December 31, 1974. Our Association has supported and does support this Commission, but we believe it would be a serious mistake if the Congress should seek to avoid coming to its own finite conclusions on key copyright issues, on the ground that such questions could logically be deferred for consideration by the new Commission. In our judgment, such a course would represent a serious abdication of Congressional responsibility, and would increase rather than decrease the ensuing confusion. In a true sense, it would merely shift the debate
to another forum and one not so well placed as the Congress for bringing the controversial questions to clear resolution.
In the nature of things, the ramifications of the copyright issue in the context of rapid technological change will assure that the new Commission has a great many questions to debate and resolve. But the Commission's work will proceed on a far more hopeful basis if the Congress accepts its own responsibility for setting workable guidelines in the new law. In our judgment, Congressional endorsement of the existing language of Sections 107 and 108 constitutes the necessary guidelines for the print media.
Mr. DANIELSON. You have some more time, if you like-Mr. Lieb has a comment to make.
Mr. LIEB, May I respond as one of the many lawyers who was involved in the wonderful case of Williams & Wilkins, in view of the questions that were raised this morning about it?
First of all, Mr. Pattison, although it is true that the Supreme Court decision said the judgment of the Court of Claims is affirmed on a four to four vote, the established law is that such a decision by the Supreme Court lacks any precedential value whatsoever as far as the Supreme Court is concerned.
Second, I would like to point out to those who are not intimately familiar with the briefing in the case, that the Solicitor General in his brief to the Supreme Court defended the practices as shown by the record on appeal, and there was a very limited, narrow record of only copying of eight articles of at most three times of one, the other twice of one.
The Solicitor General defended the practices that appeared in the record as not systematic and said in two places in his argument that had the case had before it facts involving a library consortium, such as was recently established by New York Public Library, and Harvard, and others; had it had before it a case of true systematic copying the argument would not be made.
So, the Williams & Wilkins decision, such as it is, resting on a four to three decision of the Court of Claims, is to be read most narrowly not only because of the narrow facts in the record, but because of the reservation and doubts of the Solicitor General with respect to the principle involved.
Mr. DANIELSON. Thank you. Mr. Pattison? I think we can safely say we have about 10 minutes between us, you take the first 5.
Mr. PATTISON. I guess I'm just primarily concerned in terms of the mechanical problems once some satisfactory or otherwise agreement is worked out by Congress, and the mechanical problems of preclearance, what is an adequate charge, how the proceeds are distributed, recordkeeping with all the varieties of libraries that we have_tiny ones and great big ones—I would like to have some of your comments. I think Mr. Hoopes has been very helpful on that, but it seems to me some kind of agreement has to be worked out, some complicated mechanism undoubtedly will have to be worked out to resolve those questions.
Mr. HOOPES. If I may, Mr. Pattison, I would like to refer that question to one of the gentlemen who participated in the working group.
Mr. KARP. Mr. Pattison, may I start by pointing out, the papers that Dr. Kenyon submitted contain a description of a prototype, a prototype in which the mechanics are described. They start in part from the device of a code printed on the first page of every article, indicating the price, the identification of the publisher, and so forth.
The next step would be the Xeroxing of an extra copy of that page. In other words, when the article is Xeroxed, the first page will be Xeroxed twice. Those first pages will then be shipped in bulk to the clearance center which would process them. The processing could be done in various ways in which I don't want to get bogged down, including optical scanning..
Beyond that, I also should point out, that is only one possibility. The study group was involved, and hopefully will continue to be involved in developing that system. And, as Mr. Hoopes pointed out, one of the purposes of the study to be undertaken by the National Commission on Libraries and Information Science is to test the system and refine it.
One more thing, and I will turn it over to Dr. Kenyon. The history of copyright is full of technological revolutions, this is not the first one by far. Phonographs, motion pictures, television, radio all developed during the 1909 act; and frankly, some of them are much more complicated and more devastating in their impact on prior methods of distribution. The jump from printing journals to photocopying, quantitatively, is nothing compared to the jump from publishing sheet music to performing music on long-playing phonographs and radio and television. That was a tremendous jump, economically. Yet, copyright owners and users were able to work out systems for licensing, facing problems much more complex than what we have here. It's poppycock to talk about the complexity of these problems, compared to the complexities that face the performing rights societies.
And our problems can be handled much more easily, I think, in the long run. But the important thing is to at least try, and not come up to the author and back away; and come up to the author and back away in the manner Mr. Low described. If you go through the process of trying you don't take away other people's property just by lightly saying, "I, a librarian who has worked in the public field and public funds for 40 years know that you businessmen can't cope with this problem, so our solution is to take your rights away from you”, that just isn't something we can lightly accept.
I think that if the attempt is made to work it out—that may also eliminate other complications. Here are 10,000 journals placed on micofilm by copyright owners' permission. Other journals would be in here if their proprietors were not fearful of the fact that once the journals. were photocopied by University Microfilms and sold to libraries, the consequences on a photocopying exemption would be devastating.
Mr. DANIELSON. I think that the gentleman is referring to the rather large catalog of microfilm work that is put out by Xerox.
Mr. KARP. University Microfilms, which is a subsidiary of Xerox Co. Thank you, I have taken too much time. I'll turn it over to Dr. Kenyon.
Dř. KENYON. I don't think you have gone into a detailed description of the mechanisms. The elements of such mechanism are included in our report here. It is our view that the publishers said they believed that a kind of system could be developed with the elements of this mechanism, could be effective in receiving payment for photocopies. Library people have said they doubt it.
But at least we have developed elements for such a system which have been presented to the Conference on the Resolution of Copyright Issues. And in the press release from the Library of Congress that was issued in very recent days, it states that the National Commission on
Libraries and Information Sciences is prepared to assume responsibility for financing and to cosponsor with the Conference a project to compile library statistics on photocopying, including testing a payment mechanism. As had been indicated, the interlibrary loan is a very important instrument in providing information, and the added matter of recording the photocopying that is done, and fitting that information into a central clearinghouse, we believe, can be developed in a relatively low-cost system, especially in view of the existing electronic mechanisms and continuing advancement with such mechanism.
Mr. PATTISON. I just have one more question. On page 6, Mr. Karp, you referred to a Xerox per page fee as a royalty, and I am wondering if that is accurate. In other words, is that the charge Xerox makes when they lend a machine to you, whether you are taking pictures of your hand, or some copyrighted material, there is still a fee.
Mr. Karp. You copy a page, the library copies a page on the Xerox machine-I think this is useful to illustrate that point-and Xerox gets paid for every page they copy for the use of its property, 2 cents a page, or whatever the arrangement is. The material on the page to the librarians is of lesser significance, so they say it shouldn't be paid for.
If I may, Mr. Chairman, Mrs. Linden who has been prominent in the deliberations on photocopying and represents several publishers wishes to make a comment.
Mr. DANIELSON. Go right ahead, ma'am. You know we are on borrowed time because the House is in session.
Mrs. LINDEN. I'll try, 2 minutes, thank you very much. The discussion this morning, its major portion centered on the photocopying and duplication of scientific and technical journals. If you would be good enough to look at sections 107 and 108, they deal-section 107— with fair use of all copyrighted material, sheet music, and the library photocopying issue, the most immediate one by consensus of all, relates to scientific and technical journals. But that is not to say that the language promulgated in section 108 relates only to scientific and technical journals. Focusing too narrowly on the most immediate element expressed this morning it is my fear-and I hope unfounded—that the larger and fundamental issue might be overlooked, and that is a change in the express language of 108, and the elimination of the subsections requested by the library group would affect all intellectual copyright, books, scientific books, encyclopedias of all kinds, children's books, all literature that we are discussing. And it does so not only retroactively where we are dealing with legislation, but proposes to regulate prospective uses of all intellectual property.
And therefore I urge strongly that we not look so closely to the minute of Professor Low's illustrations which we all concede are fair ; nise, and forget the basic issues that sections 107 and 108 relate to. Thank you.
Mr. DANIELSON. Thank you, ma'am. For the record, will you give us your name and your affiliation ?
Mrs. LINDEN. My name is Bella Linden; I'm partner in the form of Linden & Deutsch and represent some of the major educational publishers.
Mr. DANIELSON. I understand we are going to have you back tomorrow, so, this is sort of an advance showing, is that right? No; you are welcome back
Thank you. We don't have a quorum call, we are in session, but I have a couple of quick questions and comments I would like to make.
Dr. Cairns, you produced some interesting figures relative to circulation. It would be helpful to me at least, and I think to the other members of the committee, if you could provide us with some data on that. And I hope you will be good enough in doing so, to be very conservative in your computations, so that we will have good, hard figures to deal with. If you would comply with that request, we would appreciate it.
Dr. CAIRNS. We will give you those. [The material referred to follows:]
AMERICAN CHEMICAL SOCIETY,
Washington, D.C., June 25, 1975 Hon. ROBERT W. KASTENMEIER, Chairman, Subcommittee on Courts, Civil Liberties, and the Administration of
Justice, Committee on the Judiciary, U.S. House of Representatives, Wash
ington, D.C. DEAR CONGRESSMAN KASTENMEIER : During the hearings held in May 1975 on H.R. 2223, Congressman Danielson requested supplemental information of the American Chemical Society for inclusion in the record of those hearings. Therefore, I have enclosed for your information and that of the Subcommittee a chart comparing circulation of scholarly journals published by the American Chemical Society during 1969 and 1974. The request for supplemental information, which indicates the magnitude of the decline in circulation of these journals, was made during the discussion of the potential effects of continued photocopying on circulation of scientific journals.
I have also taken the liberty of providing you with a copy of “Copyrighting Physics Journals" by Dr. H. William Koch, Director of the American Institute of Physics. Please note that the article has been reprinted from Physics Today—not photocopied by us, I believe you will find that the article further indicates that the decline in journal circulation is a result of widespread photocopying of single articles.
On behalf of the Society, I wish to thank you again for the opportunity of presenting our views on copyright revision as it relates to the issue of photocopying. The Society would be pleased to cooperate in any way with you and the Subcommittee on Courts, Civil Liberties, and the Administration of Justice in resolving this issue. Sincerely yours,
ROBERT W. CAIRNS. Enclosures.
AMERICAN CHEMICAL SOCIETY
Accounts of Chemical Research..
32. 367 6. 964 5. 709 6. 349 6. 428 6, 427 5,074 5, 013 15, 659 1.948 2, 143 4,043 9, 440 5,271 2. 432