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76. Survey of Current Business (Monthly).
STATEMENT OF JULIUS J. MARKE, ON BEHALF OF THE AMERICAN ASSOCIATION
OF LAW LIBRARIES Mr. Chairman, and members of the Committee, I am Julius J. Marke, Law Librarian and Professor of Law, New York University. I am Chairman of the Copyright Committee of the American Association of Law Libraries, and am appearing on its behalf.
The American Association of Law Libraries (A.A.L.L.) was established in 1906 and presently has a membership of approximately 2,000 law librarians servicing University Law School libraries, Bar Association libraries, County Law Libraries, Court libraries, State Law Libraries, and Practitioners Libraries throughout the nation. Its Headquarters is located at 53 West Jackson Boulevard, Chicago, Illinois, 60604.
The A.A.L.L. is established for educational and scientific purposes and is conducted as a non-profit corporation to promote librarianship, to develop and increase the usefulness of law libraries, to cultivate the science of law librarianship and to foster a spirit of cooperation among the members of the profession. It has twelve regional chapters, known as Association of Law Libraries of Upstate New York, Chicago Association of Law Libraries, Greater Philadelphian Law Library Association, Law Librarians of New England, Law Librarians' Society of Washington, D.C., Law Library Association of Greater New York, Minnesota Chapter of A.A.L.L., Ohio Regional Association of Law Librarians, Southeastern Chapter of AALL, Southern California Association of Law Libraries, Southwestern Chapter of AALL and Western Pacific Chapter of AALL. Foreign Law Librarians, residing in the following countries, are also members of the American Association of Law Libraries: Canada, Australia, Belgium, Colombia, England, Ethiopia, West Germany, Finland, France, Israel, Italy, Jamaica, W.I., Japan, Korea, Netherlands, New Zealand, Nigeria, Northern Ireland, Republic of the Philippines, Singapore, Sudan, Sweden, Switzerland, Tanzania and Turkey.
The American Association of Law Libraries is also a publisher of scholarly and technical publications. It publishes The Law Library Journal, The Indez to Foreign Legal Publications, the A.A.L.L. Publications Series, Current Publications in Legal and Related Fields and the A.A.L.L. Newsletter. In addition the Index to Legal Publications is published by the H. W. Wilson Co. with the cooperation of the A.A. L.L.
Although the A.A.L.L. has reservations about other parts of H.R. 2223, I shall address my comments to those sections of the bill affecting library photocopying.
The A.A.L.L. joins other national library associations in recommending legislative safeguards and exemptions for those library uses of copyrighted works necessary to guarantee the public access to library resources for educational, scientific and scholarly purposes.
The major concern of the A.A.L.L. is that sections 108(g) (1) and 108(g) (2) negate the grant to libraries in section 108 to make single photocopies of copyrighted materials.
I. LEGISLATIVE SAFEGUARDS AND EXEMPTIONS Section 108(g) (1) limits the right of reproduction and distribution under section 108 only to "the isolated and unrelated reproduction or distribution of a single copy of library materials on "separate occasions". It does not extend, however, to cases where the library, or its employee is "aware or bas substantial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies ... whether made on one occasion or over a period of time and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group."
Section 108(g) (2) denies to libraries the "systematic reproduction or distribution of single or multiple copies" of material described in section 108(a).
The AALL is concerned that library systems are evolving in many forms and as a result not even librarians have enough information on library networks all over the country to arrive at an acceptable understanding of the situation. Therefore, it is impracticable at this point of time to define "systematic" with reference to these "systems”. Actually, librarians are only attempting to use available resources adequately and maximize their collections rather than economize at the expense of the publishers by promoting photocopying of their library materials. An example of one of these "systems" is multi-county libraries organized to support a single library system. In this context, librarians are concerned about foreclosing interests by definition, Legislative restrictions with reference to “systems" when read into the copyright revision law, could create problems in the future as technological developments in this area are so uncertain and unforseeable at present. They also are in direct conflict with the express Congressional intent as a matter of public policy to encourage the creation and promotion of such “systems” as set forth in the Higher Education Act referred to under I(d) supra.
The AALL also insists that "systematic” library photocopying restrictions under section 108(g)(1) and 108(g) (2) must be relaxed to reflect a recognition of a library's right to make single photocopies of materials in its collection and the applicability of the "fair use" doctrine. Librarians are concerned that "systematic" can be used to whipsaw them. Sections 108(g) (1) and (g) (2) depart from “single” and “multiple". If "systematic" swallows up "single" and the applicability of the Fair Use doctrine then librarians protest. "Systematic" can only refer to “multiple” copying.
The AALL also protests that the concept of library single photocopying as "fair use" is now limited under section 108 (g) (1) to “isolated” and “unrelated" single photocopying.
Then again, what is meant by words and phrases in Section 108(g) such as "period of time"? One day, one week, one month, one year? What is meant by the library or its staff "know or has reason to know", of "multiple copying"? At what point and under what circumstances is the library administration put on constructive notice of multiple photocopying? What kind of records must be kept by the library of these activities, or type of consultation required of staff members involved to prevent such “related or concerted" reproduction? What is meant by "distribution” in the section ? "What is a branch library? Is the Law Library on a university campus a branch library of the University Library System?
Librarians cannot depend on the courts applying "rule of reason" construction to these nebulous words and phrases in section 108(g). Librarians have serious reservations about this approach and must insist on specific guidelines to prevent “prior restraint”.
*Systematic" library photocopying as set forth in section 108(g) (2) allows for a construction depending on "availability" as the key factor in determining when a "system” exists for this purpose. Therefore, any system which provides the comfort of availability of a publication to a library, which therefore does not bave to provide for it in its budget, would be “systematic". As a result, a listing of library holdings of serials, such as to be found in the Union List of Serials (which has been on the open market for more than 40 years), even though not prepared for commercial advantage, or for the purpose of interlibrary loan, still provides this availability, and therefore becomes a "system". Hence, any identifiable source of books in print plus knowledge of it by librarians to identify materials they lack for interlibrary loans would amount to a "system". This pervasive effect is considered intolerable by librarians as it could have serious adverse consequences for research and the dissemination and flow of information, especially as pervices by libraries. Then again, it must be recog. nized that merely because a library "system" exists, it does not necessarily follow that all photocopying within the system is "systematic”.
The A.A.L.L. also protests that as there is no objection to interlibrary borrowing of specific hard copy materials under these so-called "systems”, why should librarians not be able to make a single photocopy of these materials when randomly requested on interlibrary loan as a substitute for hard copy, especially as permitted in sect. 108(d) of the Copyright Revision Bill.
In a sense these criticisms of section 108 of the revision bill were reflected and implied in the Register of Copyrights' testimony on S. 3976 before this
Committee on November 26, 1974 (93rd Cong. 2d Sess, Serial No. 59, 1975) when she stated :
"M8. Ringer."... Section 108 of the revision bill (dealing with the making of single photocopies by libraries) is by no means sufficient to solve the larger problems of reprography, especially in libraries ... Neither the enactment of the revision bill in the form in which it passed the Senate nor a definitive decision of the Supreme Court in the Williams and Wilkins Case is going to settle the larger issues here...
"Discussions are under way in the private sector, now on this subject, in recog. nition that nothing the Congress does ... is going to solve this issue for the future, and that it is an issue that very desperately needs solving. But both of these important issues, namely, computer uses and reprography urgently need to be studied in depth by recognized experts". (p. 6–7).
The AALL recommends that "these important issues" be submitted for solution to the recently created National Commission on New Technological Uses of Copyrighted Works inasmuch as P.L. 93–573, 88 Stat. 1873, enacted into law on December 31, 1974 charges this Commission to study and compile data on the use of copyrighted works" in conjunction with automatic systems capable of storing, processing, retrieving, and transferring information, and ... by various forms of machine reproduction ...". In the interim period sections 108 should be redrafted to meet the objections set forth above.
II. LIBRARY PHOTOCOPYING ISSUES AND THE COPYRIGHT REVISION BILL
A. Purpose of copyright protection and the public interest
Generally, the purpose of copyright protection is to encourage and reward authors of intellectual works and other creative artists to produce such works for the benefit of society, by granting them the exclusive right during a specific period of time to copy, or otherwise multiply, publish, sell or distribute them, as well as to prepare derivative works based upon the copyrighted work. They are also given the exclusive privilege to perform and record these works and to license their production or sale by others during the term of the copyright protection. Basically, the purpose of copyright, as is tested in Article 1, Sectiou 8, Clause 8 of the U.S. Constitution is "to promote the progress of science and the useful arts". This necessarily implies that the copyright holder's rights are never absolute for the monopoly granted serves the added purposes of stimulating the development of scientific and other types of knowledge and to encourage the dissemination of this knowledge to the public.
To avoid frustrating this purpose, the courts have adopted the concept of a "fair use" doctrine which permits individuals and institutions, other than the copyright owner, to use the copyrighted material in a reasonable manner without the owner's consent. In essence, the "fair use" doctrine attempts to balance the rights of the owners of copyrighted works to their just economic rewards against the rights of scholars and researchers to use these works conveniently in their scholarly endeavors. As the "fair use" doctrine is an equitable rule, each case is determined on its own facts. The courts in the U.S. generally apply the following guidelines laid down initially by Mr. Justice Story in 1841 in Folsom v. Marsh, 9 Fed. Cas. 342 (CCD Mass.) in deciding whether an infringement or fair use has occurred: “We must ... in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects of the original work."
On the issue of public interest, it is relevant to note a question raised by Professor John C. Stedman. What are the rights of an author and those in privity with him? He suggests that it is a policy question of "more or less", not a legal question of what are his rights in the educational process. "How much it is necessary and desirable to give to the author in order to stimulate and encourage him to write and publish in the educational field !" Look at the "effects” of granting or denying copyright protection rather than refer generally to the "interests" of the author. Educational activity, in practical effect and in terms of public interest, must be distinguished from other activities with reference to copyright protection. Consideration must be given to the strong public purpose behind educational activity. "Beware!!" he cautions authors and publishers, if the copyright toll becomes too onerous for educational activi.
ties to absorb, the result may be foregoing use of the material completely. (See AAUP Bulletin, 53:129 (June 1967)). B. Library photocopying and copyright protection
Replication of copyright works is daily taking place in libraries as part of the research and educational process. At present it is primarily reflected in reprographic reproduction (reproduction by photographic methods or processes analogous to photography), and is an established and recognized practice in library administration, teaching and research.
Reprography in libraries and for educational purposes should not be confused, however, with computerized retrieval of data and information, which in its present state of development is hardly a serious threat to owners of intellectual property but which could eventually become so. Researchers, librarians and educators in the future will then become involved with new techniques of electronic document-storage and computerized information-retrieval systems just as they are presently learning about the tremendous potential of miniaturization and remote transmission of data.
Currently, the most pressing problems facing owners and users of copyrighted works lie in the reprography area as distinguished from electronic systems.
Scholars, researchers and librarians, relying on the doctine of fair use, have always felt free to copy by hand the works of others for their own research and study needs. When copying machines become available, it was a simple transition for these scholars, etc., to extend their note-taking to photocopying from copyrighted material. Publishers maintain that the new machine-copiers made replication of their copyrighted materials so easy and inexpensive that their sales are being detrimentally affected to the point that if allowed to continue they will be forced out of business. As a result, the creator of information would lack the income from his ideas to maintain a degree of independence. Educators particularly object to any limitation of their right to make machinecopies on the grounds that they, like librarians, are not doing so for profit; nor for any direct or indirect commercial advantage, but rather to promote the educational process.
The traditional library position on reprography in libraries is to the effect that not only under the Fair Use doctrine, but also as a natural extension of customary library service, a library may make a single copy of copyrighted material it has purchased, for the scholarly use of any of its readers or another library, requesting such service, if done without profit. Such service, employing modern copying methods has become essential. The present demand can be satisfied without inflicting measurable damage on publishers and copyright owners. Improved copying processes will not materially affect the demand for single-copy library duplication for research purposes. Librarians also argue, no matter who is involved, whether it be the librarian, the publisher, or the creator of information, the main concern should be the public interest in access to information. Copyright protection should not be an impediment to transferring information. C. The economics of library photocopying and the public interest
Publishers allege that although libraries are not in the business of photocopying for profit, still by doing so, they are depriving publishers of the opportunity to sell additional copies and even to maintain their current subscrip tions. In the Williams & Wilkins case, however, involving a U.S. government library's unauthorized photocopying of copyrighted medical periodicals for and at the request of medical researchers and practitioners, the U.S. Court of Claims not only held this practice constituted "fair use", but that “there is inadequate reason to believe, that it (the publisher) is being or will be harmed substantially by these specific practices.” Actually, this conclusion is horne out by the realization that if most of the users in libraries who photocopy copyrighted materials would be deprived of this opportunity, they would not purchase the original material. Then again, researchers, scholars and academicians rarely purchase all or even a few of the books and/or journals they use in their research. They receive complimentary copies and reprints of articles or they borrow library copies. Only if these sources fail to provide the materials sought, do they resort to photocopying. The publishers' complaint that photocopying is depriving them of profits because of lost sales is therefore not a completely valid conclusion. Many of the potential sales the publishers envision are not of the type that ordinarily occur. It appears to be, that the publishers, despite all this library photocopying, are no worse off than before.
While libraries and large industrial organizations are principally involved in replication of copyrighted materials (also there is much private and casual copying by students, faculty and others in college and university libraries) still they continue to purchase many new titles and journal subscriptions, as well as maintaining the older subscriptions. It should be also recognized in this context that these institutions cannot physically shelve more than a few copies of a journal, etc., due to lack of space and therefore would never purchase a great number of subscriptions to a journal merely because at one time there was a demand for additional copies of a given article.
In this context, we should also review the economics of publishing. It is an established fact that publishers of scientific and technical journals, publish limited editions of their issues so that they often are unable to sell additional copies on demand as early as two months after publication. They do not invest in maintaining stock of back issues of their publications, and hardly ever reprint them. Thus, depriving themselves of the opportunity to sell their back issues on demand. Still they are insisting on the payment of fees additional to the subscription price of the publications, for photocopying rights of these back issues. Then again, publishers, especially in the areas of scientific and technical reference works do market research before publishing new titles and publish them only when assured that libraries will purchase them in addition to specialists in the field. When they determine that the sale of a particular work will be limited, the list price established is increased to reflect this in order to insure a profit.
Surveys have also established that as many as 80% of authors of scientific articles are more interested in dissemination of their articles than in receiving royalties. In the scientific field, it should also be noted, authors not only do not receive remuneration for their articles, but often are required to pay for the cost of having them published or absorb the cost by purchasing a stated number of reprints. It has also been noted that subjects dealt with in scientific literature and some of the other disciplines such as law have become so specialized that most researchers in those fields are interested sometimes only in one article out of the many published in a particular journal. Reprography in libraries and documentation centers appears to be the only obvious way today for researchers to have access to the many scholarly resources of their field.
Publishers complain, however, that they are bearing the economic brunt of this development. The hardware and paper used for reprography are bought and paid for by libraries, etc., why shouldn't publishers be given additional income for the right to make copies of their copyrighted works! They also add that even though scientists, etc., etc., pay for publication of their research papers, they should be interested in the survival of the scientific journals which give them an opportunity to disseminate their findings and research reports.
Librarians respond to this copyright confrontation as follows: Non-profit library institutions are not in business and have nothing to gain by photocopying for others. Their purpose is only to promote research in the sciences and humanities in the public interest. They are involved with access to knowledge and its bibliographical control so that scholars, educators, scientists, etc., can use such data in their research and in the process create new information and materials. Why should librarians, under these circumstances be caught in the middle of the conflict between owners and users of copyrighted materials, and be required to take sides? When we become concerned with technology and economics, we must realize that they are not material to the library's ulterior purpose of information dissemination.
Library institutions do have an interest in the reproduction of copyrighted ma. terials for their own internal, nonprofit purposes. They have a vital concern in conserving copies of periodicals and of works in their collection which are out of print, under certain circumstances. They also have an interest in reproducing multilated or missing pages of works in their collection. Then again, in order to conserve their collection, they recognize the need to photocopy materials in their collection for other libraries, requesting them on inter-library loan. Ground rules should be negotiated for these purposes but not at the expense of limiting the free flow of information, and certainly not with the added cost to libraries for administering a system involving payment of fees, licensing, etc., for the benefit of owners of copyrighted works. D. The new technology and the copyright rcvision bill
What position should this committee take with reference to computer technology and related copyright problems? When the integrity of a basic collection of materials, copyrighted and otherwise, compacted and stored in electronic