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he cannot stretch the concept too far. At the same time the provision prevents the author from restraining the user from reasonable pursuit of his work because of trivial reasons.
There has been much uncertainty recently by computer-oriented researchers as to how far they can go in their experimental work of storing, retrieving, and disseminating copyrighted information. Again, it seems that S. 597 leaves them reasonably free to experiment as they wish without fear of suit for infringement. This is implied by the words: “Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by any other means specified by that section, for purposes such as teaching, scholarship, or research is not an infringement of copyright."
Section 107 goes on to outline four (4) factors which will be used to consider whether a particular case is fair use:
"1. The purpose and the character of the use;
"3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
*4. The effect of the use upon the potential market for or value of the copyrighted work." It will not be particularly difficult to determine in the light of the enumerated factors, especially 1 and 4, when a particular computer-based research information, storage, retrieval, and disseminating program moves from the experimental to the operational stage, unless one is interested in quibbling. On the other hand, if it appears necessary to field test a system by storage and transmission of large quantities of information, or by the allowance of independent, “choice by individual quantities of information, or by the allowance of independent, “choice by inrecipients in activating transmission from an information storage and retrieval system or any device, machine or process,” (Sec. 110(1), D), such testing can certainly be done with noncopyrighted material.
Any other needs of the user can be negotiated with the copyright holder. If the user feels separate negotiation is too cumbersome, he should support the development of a clearinghouse system.
Simply put, we see no way by which the author can eliminate the technological capability of the user to reproduce his information at will, nor why the user should want to further reduce the rights of the author. Continuing efforts in this direction will harm both parties. They should turn their combined energies toward accommodation now.
"Fair use" is at best inconclusive. If some clearance system is not established, it will serve as a temporary guideline to the user and eventually to the courts. It does not solve the real problems, which are two: the increasing need of education, science, government, and business for multiple copies of documents; and the fact that since the copyright owner's compensation is the total return from the use of his work—the loss through "fair use" of his work cannot be measured in terms of any individual use, but only in terms of the total use and total copying.
Therefore, we fell that the present provision for fair use, while making possible some types of research use of copyrighted material in computer and microfilm storage devices, cannot solve the "computer problem,” let alone the direct copying problem. At best, it serves as a temporary safety valve, until some clearinghouse system is established. At that time, the concept of fair use should lose its importance and die off as some form of vestigial tail.
I would like to continue my remarks with a brief quote from an invitation dated April 9, 1959, sent to a representative group of individuals considered interested in those aspects of the copyright law which affect communication in scientific and educational information:
“The present copyright system presents an increasingly serious problem because of the tremendous need for reproduction and dissemination of scientific and educational information. The communication of this information is unduly restricted under the overall copyright system.
"New methods, inventions and techniques may solve many of the physical and intellectual problems of handling and disseminating information. The copyright system, as it now works in practice, does not permit the unrestricted circulation of information. It is felt that a more efficient way must be sought to administer the system either through changes in the law or through some structure which will permit the fullest utilization of the present law.
"It is felt that the interests of our country can best be served through the fullest interchange of scientific and educational information. With this objective in mind, we are interested in investigating how the free flow of information can be maintained and advanced on an ethical, legal and efficient basis without depriving the copyright proprietor of his rights.”
This invitation was the result of a prior informal meeting of seven individuals at the office of Mr. Horace Hart, then Director of the Printing and Publishing Industries Division of the Department of Commerce. Thirty-three carefully selected individuals were invited to the conference. The criteria were that they must represent an organization, Government agency, or corporation vitally interested in cop right law and that they have a position of authority in their respective organizations.
No attempt was made to invite a representative from every organization that might be interested; this would have been impossible. Instead, we reasoned that representatives from the American Institute of Biological Sciences, the American Institute of Physics, the American Chemical Society, and the American Association for the Advancement of Science could adequately represent the problems, viewpoints, and interests of science and society publication; the McGraw-Hill Publishing Company, the American Textbook Publishers Institute, and the American Book Publishers Council could do the same for the commercial publishers. (The original invitation and the list of individuals invited are attached as Appendix A.) Most organizations invited to the conference were represented.
During the conference held on May 19, 1959, discussions demonstrated that indeed very little thought had been given to the real meaning of the newest methods of reproduction, transmission, and storage and retrieval as they were bound to affect the copyright law and the copyright owner, or to how these methods and devices could be used efficiently, if the law were to be strictly adhered to. It was equally evident that while there had been occasional consideration of the copy. right problem within a variety of organizations, it had always, of necessity, been from the viewpoint and needs of the particular group.
CICP is the first group to approach the problem from a total national viewpoint. The conference voted to continue the Committee for another year and elected me to serve as Chairman until the next meeting: Mr. Joseph McDonald was elected Vice Chairman, and Mr. Gerald J. Sophar Secretary. Dr. Laurence B. Heilprin was appointed Chairman of a Study Group which was charged with defining the problem and proposing various solutions to it. A report was due the following year, prior to the second annual meeting of the Committee.
The Study Group took its job very seriously, attempting to represent all viewpoints. The second annual meeting of CICP was held May 18, 1960. I introduced the report with these remarks:
“We do not wish to leave this room this afternoon until we have determined what is next on the program, because I think we face a very cold and sober factthat in the course of time there will be trouble, there is bound to be trouble from the multiple copying that has to be done for the dissemination of the work of authors, particularly scientific authors, and educators. And yet many of us here have a definite interest, strong perhaps in the sense of financial interest, and there are other interests, too, in seeing that this material is protected for your authors, or for yourself as a business enterprise.”
The Heilprin report is as fresh today as it was in 1960. Its evaluations, conclusions, and recommendations have never been seriously challenged as to substance. The report was criticized as based too much on conjecture about what had occurred, what was occurring, and what might occur should the situation continue.
The intervening seven years have, we feel, clearly demonstrated that the Study Group's analysis was correct. (This report is attached as Appendix B.)
Regarding the criticism of conjecture, it should be stated that the Study Group actually did consider gathering data through questionnaires, but decided the timing was inappropriate for the following reasons:
1. CICP was not financed.
2. The problems were incipient ones, and the value judgments of the Study Group members-carefully chosen as to experience and access to early knowledge of the developing problem-were considered more important at that time than a conglomeration of data as to how much microfilming and photocopying of copyrighted material was going on at that early stage.
3. A forecast cannot be proven by data at the time it is made. Only after passage of time can a forecast be evaluated. It was the judgment of the Study Group that the only factual evidence consisted of such things as; the existence of microfilm and microcards, of a variety of photocopving devices, and of the ambitious experiments going on such as those in information storage and in the software and hardware of computer technology. In our judgment more could be gained at that time by trying to understand what was happening because of new technology, than by trying to determine how much. After all, the main components in the situation were well known: authors, publishers, books, readers, and copyright. Both the components and their relationship to one another had remained essentially the same for many decades, except for slight improvements in their methods of functioning and relating to one another. Suddenly basic new technological breakthroughs such as microfilm, xerography, computers, and computer programs were available. Although their effect was still minimal, to those who were perceptive it was obvious the new technology would inexorably change the nature and function of some parts of the process. Recording, duplicating, and transmission methods rapidly were changing the way information travelled from the author to the user and the rate of change was bound to accelerate. However, two essential elements would remain: the author-creator represented by the publisher, and the user represented by the librarian.
The legal relationship between these two groups was clearly established by the Constitution. It was inconceivable that the Congress would ever consider changing this basic relationship by amendment. Thus the Study Group concluded that the wisest thing to be done would be development of an accommodation which would operate under the law.
The Study Group also kept constantly in mind that the only struggle is not between the authors and the users but within the individual according to the role he is playing. To quote from the First Annual Report:
"It is important to see that the conflict is not between publishers, on the one hand, and scientists on the other. It is an internal conflict, between the scientistuser, and the scientist-publisher or his agent who is supplying the scientist-user with publications. On the surface they are not struggling for the same things. The scientist-publisher struggles to retain his grip on revenue through copyright. The scientist-user struggles for freedom to create and teach. With his advancing copying techniques he is slowly breaking the grip of the publisher. Neither is the gainer, for both serve science."
In spite of these insights testimony during the House Hearings on H.R. 4347 give little support to the above premise. Each element of the process has coalesced around its own particular function in pleading its case. The authors, publishers, educators, and librarians were represented by strong associations whose basic purpose must be the apparent ultimate good of that particular group. This testimony was sincere, but reflects the group's viewpoint rather than the entire citizenry.
CICP has defined the national problem and a goal. The problem is that the "exclusive Right” (granted an author by the Constitution and the Congress) to his “Writings,” is being threatened by modern information dissemination systems. But our society clearly accepts the idea that it is beneficial to obtain as wide a dissemination of information as possible, by the most efficient means. Publishing, once a simple process (writing, editing, typesetting, printing, and distributing), permitted the author and publisher to police their own works and enforce their rights because they controlled the plates from which publication was produced. Today the author and the publisher have control only of the original dissemination, and because of new duplication and new dissemination methods have virtually lost control of secondary dissemination which can become large itself--even larger than the primary. Therefore the value of exercising their constitutional and statutory rights, as they see fit, has diminished.
Two clear rights exist: the right of the author and the right of the user. One might think from much of the testimony on HR4347 that the user feels the publisher wants to surround himself and his product with a wall of copyright monopoly to impede all progress in science and education, and that the author and publisher feel, on the other hand, that the user is interested only in getting all information free of charge from some bottomless well. These may only be expressions of frustration. However, both sides are as dependent upon one another as man is upon his environment, though he constantly fights it. The only eventual solution is found in accommodation. The copyright law gives a right-effectively an economic
or what may be called a negotiable property right-to authors and publishers. The negotiable instrument in this case---a close, though not precise, analogy-is the copyrighted message itself. Because of modern technology, the negotiable instrument might be considered subject to "counterfeiting." "As the appearance of the "counterfeit" has little to do with its uniqueness and, therefore, its value, the user is usually quite satisfied with the substitute, be it a photocopy, computer print-out, or any acceptable "tangible means of expression.” Though an alchemy of the message occurs and the source and origin of the message may no longer even be identifiable, the uniqueness of the message remains.
It is easy to see that the effect of the new technology is to remove from the control of the issuer the quantity of the original instruments that is printed and the price he chooses to charge. With the quantity in circulation increased, the total value may well be decreased. The fact that "counterfeits” are made in large quantity, or will be made, is bound to affect the return which can be obtained from the original investment.
The considerable discussions as to whether easy copying increases or decreases the sale of periodicals and textbooks evade the main issue. The point is that no one has the right to duplicate the message, beyond what Congress and the courts choose to call "fair use," now or in the future.
On the other hand,' the publishers-especially, scientific, educational, and textbook publishers-provide a most essential part of the educational complex. Thus, they cannot ignore the utility of the new technology and deny the use of their published works for duplication or conversion. In recognition of this fact, CICP is examining what may be called a conversion contract. This will allow the copyrighted message to be stored, processed, and republished in other than its original form. This manipulation and alteration of a copyrighted work should not change the originality of the copyrighted message or "Writing.
For the administration of such extended types of use contract under the copyright law, CICP has proposed since 1960 a voluntary copyright clearinghouse. The clearinghouse would act as a marketing device, or as a switching point at which user and author can meet and negotiate the value and method of payment for reproduction or conversion rights to the copyrighted message.
CICP is not the original proponent of this idea, but has been its most consistent advocate. The late Arthur Fisher, former Register of Copyrights, stated at the Conference on the Arts, Publishing, and the Law, in May 1952:
... These problems are accentuated by the invention of modern devices of many kinds facilitating the reproduction and transmission of knowledge .
"It has been suggested that these undertakings might be expanded by the organization of a society somewhat similar to the American Society of Composers, Authors and Publishers (ASCAP) which in the field of music licenses performance rights in the use of musical compositions. Such a society might solicit blanket authorizations to add an overrriding charge to the present costs of microfilm and other reproduction of scientific articles, the charge either to be paid over to the proprietor of the works or donated to scientific development and related purposes.
"For certain types of use where the commercial and monetary aspects appear least significant, a series of calculated risks could be taken without involvement in efforts to secure specific consents. Such risks might be covered by some coinsurance device shared by a group of participating institutions or organizations."
Even Arthur Fisher indicates that a previous source generated the copyright clearance idea. In any event the genesis of the copyright clearinghouse is less important than the fact that it has the virtue of age. CICP is pleased that a number of other groups are now advocating the idea.
While we do not suggest that the voluntary copyright clearinghouse is the only solution to the problem, our studies do indicate that it is probably the solution most likely to gain wide acceptance and therefore to succeed.
Criticisms of the clearinghouse idea fall roughly into the following pattern: 1. It will be too costly. 2. Dollars cannot be spent to collect pennies. 3. It is not manageable. 4. Compliance cannot be enforced.
5. The owners of a copyright cannot be expected to let customers have any voice in the disposal of their property (although the customers are doing so right now).
6. There are not enough facts about the situation.
7. It will be impossible to devise a method for assessing or collecting payments for copying or conversion rights and equally impossible to redistribute equitably the net income to the copyright owners.
To these and similar statements CICP replies that American technology seems fully equal to the task. If we were to publish in an early issue of the "Commerce Business Daily” the following Request for Proposals or Invitation for Bid:
"RESEARCH AND DEVELOPMENT SOURCES SOUGHT "Firms having capabilities for Studying, Designing, and Operating a switching system, which will assure the collection of fees for the copying or conversion of copyrighted material from organizations servicing the user of such material and the redistribution of the net income to the owners of the copyright, are invited to submit a Statement of Capability. Respondents to this synopsis will be evaluated on the basis of their submission of information and data relating to the following: (a) Experience and background in economic statistics; (b) Past or current experience in developing complex switching systems and obtaining maximum cost effectiveness from the systems; (c) Simulation of models which project the volume, kind, and rate of activity with the switching system for the next decade; and (d) Ability to develop model contracts which will support the system. In addition, evidence is required of the availability of an effective operating organization capable of implementing the system.” we venture the opinion that the above announcement might produce one hundred responses. The final competition for the contract might well be between ten to twenty firms. CICP does not underestimate the problem of developing a copyright clearinghouse. However, because of our national technological capabilities we feel the concept reasonable from the viewpoint of systems requirements and accounting. Any defects will be found in the legal, social, and organizational and economic aspects of the problem.
CICP supports S. 597 as an extremely well considered bill. However, since solutions to problems related to the dissemination of copyrighted scientific and educational communication appear to be partly uncontrollable, we feel that an additional device must be introduced into the process. The law states the rights of all elements involved in the process of transfer of a copyrighted message, and the rules under which the copyright owner and the user can operate. The proposed clearinghouse would establish a practical means for copyright owner and user to comply with the rules and accommodate one another. We support the bill, in the firm belief that once it becomes law, authors, publishers, scientists, educators, and other concerned parties will turn their energies to the important matter of negotiating and developing a system, rather than arguing for the most favorable position. We urge the same points previously made by us before the House Committee on HR4347 (attached Appendix C).
CICP is now conducting a small study to devise a sampling method for fairly estimating the amount of copying of copyrighted material done during any time period. Six cooperating libraries are recording each copy of copyrighted material made, by publisher, during a one-month period. The effort has two purposes : to assist in the design of a sophisticated sampling formula for a larger test, and to find out if the sampling technique can be refined to a satisfactory degree of accuracy for determination of the amount of copying of any publisher's works in a particular library. At the moment funds are not available for the larger effort.
Another study will be done by CICP to determine: (a) the knowledge and understanding of copyright law by information clearinghouse managers and their legal counsellors, and (b) their attitudes toward the copyright problem. At the same time information will be obtained on programs which have been aborted, curtailed, or suspended because of copyright. A concurrent investigation will be made to find guideposts for evaluating the quality, quantity, and economic value of copyrighted messages, duplicated or transmitted and displayed outside of the control of the copyright owner.
Support for this study is from the U.S. Office of Education and our informal contacts tell us that the contract should be signed in time for this effort to start sometime in April.
In sum, we urge that the Congress should express its desire that a solution be developed according to the goal of CICP: that "a way be found to protect the 'exclusive Right' of an author to his ‘Writings,' while permitting the advantages of modern information dissemination systems to become as useful as they may without weakening or threatening the economic urge and the need to create.”
CICP was created for this purpose and it desires to carry out such an assignment. We are certain that a system, plan, and organizational outline of a clearinghouse can be developed, if sufficient funds are made available.