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STATEMENT OF AMERICAN BUSINESS PRESS, INC. The American Business Press, which is composed of some 400 specialized business publications published from coast to coast, is extremely concerned about the growing practice of unrestricted photocopying which has been evidenced in recent years, and only compounded by the Williams and Wilkins decision.

Unless a way can be found to protect the ability of periodical publishers to spend the money to gather, edit and produce technical and scientific information, and then distribute it throughout the nation, the flow of that information can be seriously curtailed.

Some American Business Press member publications, like Oil and Gas Journal, are sent to paid subscribers. Others, like Iron Age, are sent via the controlled circulation route to readers who specifically request the receipt of that publication. In the first instance, both the reader and the advertiser supply the funds, through the publisher, to permit the gathering and editing of technical and scientific articles, which are then copyrighted. In the second instance, the publication's primary income comes from advertisers. In both cases, necessary information is distributed to people employed in every phase of the technical and economic activity.

If the information and the articles gathered by editors are photocopied without the consent of the copyright owner, we will have situations arising like the one dramatized in the attached Exhibit A. We have deleted the name of the company which sent the memorandum out, but we present for the consideration of the Committe what is happening.

The only effect of curtailed subscriptions or curtailed circulation which this practice will cause is a severe restriction upon the securing and circulation of important editorial information because scientific and technical publications will not have the wherewithall to gather and edit the information to be photocopied. If this happens, the important news and scientific and technical information gathering function performed by the specialized business press will be seriously impaired, and there will be considerably less information to photocopy for those who do not respect copyrights.

We think the attached example tells the story better than we can. Hopefully the Committe and the Commission established in the last Congress will come up with solutions to this most serious problem. The American Business Press stands ready to be of whatever assistance it can in this effort. Attachment: Exhibit A.

EXHIBIT A To: All Home office executives.

APRIL 10, 1975. Re: Market Research Library Periodical Service.

A service provided by the Market Research Library primarily for Market Research personnel is being expanded and offered to all home office executives.

The Library presently receives the 79 publications on the attached list. Check off the ones that interest you and return them. You will receive the monthly tables of contents of your choices.

From these tables of contents, choose the articles you want, circle the titles and return them to the Library. Xerox copies of the articles will be sent to you.

Please use this service to help supplement your current reading and to elimi. nate or cut back on your present subscription costs.

H.R. MARKET RESEARCH LIBRARY PERIODICAL LIST

(Table of contents service) 1. Aspo Planning Advisory Service (Monthly). 2. Aspo Planning Magazine (Monthly). 3. Aspo TAB Bulletin (Semi-Monthly). 4. Advertising Age (Weekly). 5. American Book Publishing Record (Monthly). 6. The American Statistician (5-Year). 7. Annals of Economic and Social Measurement (Quarterly). 8. Atlantic Monthly (Monthly). 9. Banking (Monthly). 10. Bank Marketing (Monthly).

11. Barrons (Weekly). 12. Boardroom Reports (Semi-Monthly). 13. Bureau of Census Catalog (Quarterly). 14. Business Conditions Digest (Monthly). 15. Business Periodical Index (Monthly). 16. Business Statistics (sheet of paper) (Weekly). 17. Business Week (Weekly). 18. CSA-Coops and Voluntaries (Monthly). 19. CSA-General Merchandising-Variety Executive Edition (Monthly). 20. CSA-Supermarket Stores Edition (Monthly). 21. Changing Times (Monthly). 22. Conference Board Record (Monthly). 23. Consumer News (Bi-Weekly). 24. Consumer Reports (Monthly). 25. Direct Marketing (Monthly). 26. Discount Merchandiser (Monthly). 27. Discount Store News (Bi-Monthly). 28. Drug Topics (2xMonth). 29. Dun's Review (Monthly). 30. Editor & Publisher (Weekly). 31. Funk & Scott Index (Weekly). 32. Financial Trend (Weekly). 33. Food Advocate (Monthly). 34. Forbes (2xMonth). 35. Fortune (Monthly). 36. Fund Raising Management (Monthly). 37. Gasoline News (Monthly). 38. Harvard Business Review (Bi-Monthly). 39. Home and Auto (Monthly). 40. Housewares (Monthly). 41. Incentive Marketing (Monthly). 42. Industrial Marketing (Monthly). 43. Journal of Contemporary Business (Quarterly). 44. Journal of Marketing (Quarterly). 45. Journal of Marketing Research (Quarterly). 46. Journal of the American Statistical Association (Quarterly). 47. Journal of Retailing (Quarterly). 48. Kiplinger Washington Letter (Weekly). 49. Library Journal (2x Month). 50. Majors Composite Market Survey (Weekly). 51. Marketing Information Guide (Monthly). 52. Marketing News (2xMonth). 53. Marketing Review (10x Year). 54. Mass Retailing Merchandiser (Monthly). 55. Merchandising Week (Weekly). 56. Modern Grocer (Weekly). 57. Money (Monthly). 58. Monthly Labor Review (Monthly). 59. National Geographic (Monthly). 60. National Mall Monitor (Monthly). 61. National Observer (Weekly). 62. NPN (Monthly). 63. Nation's Business (Monthly). 64. Newsweek (Weekly). 65. New York Magazine (Weekly). 66. Progressive Grocer (Monthly). 67. Psychology Today (Monthly). 68. Restaurant Business (Monthly). 69. Salesman (Monthly). 70. Sales Manager (2x Month). 71. Shopping Center World (Monthly). 72. Smithsonian (Monthly). 73. Stores (Monthly). 74. Supermarketing (Monthly). 75. Supermarket News (Weekly).

76. Survey of Current Business (Monthly).
77. Time (Weekly).
78. Travel and Leisure (Monthly).
79. Wall Street Transcript (Weekly).

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, ourt 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 Indes 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 leg. islative 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 1(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 have 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 services 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 prob lems 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.

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