age and retrieval system for information storage machine processing purposes." We propose the above exemption for several reasons: First, we do not believe it fair, nor necessary for Congress to legislate against a technology and to place control over that technology in the hands of the copyright owners when they have nothing to do with the development of that technology and, when such control can only impede further development of that technology. The bill should foster development, not discourage development. Second, when in a computer, a copyrighted work is not intelligible to any human being. Therefore, there is no harm to any copyright owner to put such works in storage, particularly since they may never be used. In this state it is simply like the dusty old book on a shelf, not used by anyone. We urge that the concept of library services be kept in mind—there are many who don't purchase books who can go to a library and make use of the copyrighted works. When you place a book in an information storage and retrieval system you are merely extending the concept of libraries. Third, to be required to seek permission to only store the work in a computer is time consuming and expensive in and of itself. Having to deal with every copyright owner would be overly burdensome and highly impractical in our business world of today. Fourth, the authors will still receive their just rewards so as not to dry up the source of creativity. Copyright owners should receive increased compensation because of greater demand resulting from reasonable costs of retrieval. Fifth, a copyright bill should not be passed that is outdated the day it is passed. It will be, if information storage and retrieval is not treated in a positive way, instead of negatively, as in the proposed bill. Sixth, we feel that what was fair use in the past should continue to be fair use today. For example, establishing an index of copyrighted works by listing the title, author, and abstract of the work is fair use. Using the index to tell you in what copyrighted book an article can be found is likewise fair use. Yet, to use a computer to do the same thing under the bill would would be an infringement. The use of a computer to tell you where you can find a copyrighted article would be forbidden under the proposed bill. The fact that there is the possibility of a new device being developed to tell you where to find something-to tell you where to find something in much less time than it took before should not change its status as being fair use. We ask that those uses which are presently fair uses without a computer, continue to be fair use with a computer. Seventh, the suggestion has been made in the House report of March 8, 1967, to study information storage and retrieval further-with possible legislation following. However, in the meantime the bill legislates against information storage and retrieval in extending the rights of the copyright owner far beyond those that are needed. There is no need for this, since there is no harm to the copyright owner at the present time. The fears of the copyright owners are based on conjecture without any evidence of harm. For example, the Library of Congress does not have a device to retrieve a copyrighted work by the use of a telephone communication system or the like. Nor is this something that is going to happen tomorrow. We think it proper for Congress to study the problem further. But there is no realistic need to favor copyright owners over the interests of the public at this time. The fair thing, we believe, is to place both sides on equal footing while you make your study. This is particularly so since there is good likelihood that after such a study Congress won't change the status of fair use merely because a new tool might make our task of retrieval much easier. This concludes my statement, and I thank you for the opportunity to present it. Senator BURDICK. Thank you, Mr. McGowan. Some of us are not as close to this technology as you are. Would you give me an example of the copyrighted work that was in output, as you say? Mr. McGOWAN. When a copyrighted work is in output? Senator BURDICK. Give me an example of what kind of work it would be, how does it come out physically. Give me a picture of it. Mr. McGOWAN. This would come out as a copy of the work in visual form. Senator BURDICK. Most of the witnesses say that we are in a very primitive state yet; is that correct? These things we are talking about, are they in being now? Mr. McGOWAN. Some information storage and retrieval systems are in being now. One such system is the U.S. Air Force Accounting and Finance Center system. They have a data bank of 75 million words and it is expected to be doubled in the near future. Another system that is being used by each of 11 different States involves their statutory laws. They have incorporated them into an information storage and retrieval system. Each system is in the order of 6 million words. Other States are considering establishing a similar data bank for their statutes. The use of information storage and retrieval systems is growing. One of the problems is the gathering of information for input into a data bank. The difficulty is knowing in advance what information you want to put in that might be retrieved. In this connection it is no different than setting up a library. However, it is much more costly because of the equipment involved. But it must be borne in mind that an information storage and retrieval system is nothing more than a library and should be treated as such. Much of the information used in such a system might not be copyrighted. If the system uses copyrighted material, the problem is how to pay the copyright owner. It is unrealistic to ask the owner of the information storage and retrieval system to not only buy the book but seek approval from each of the thousands of copyright owners to incorporate a copyrighted work into the system. At this point of time it is not being used by anyone. It is no different than a librarian buying a book and placing it in the library. What we believe is fair is that the copyright owner should be compensated when there is a printout capable of being used subject to any fair use exemptions. If someone were interested in a particular subject matter area, the owner would send a list of the articles much the same as a librarian if the library card system were used. This would simply tell the user where to go to locate the articles. If he wanted any of the articles in a form which would displace the copyrighted article itself, there should be a payment for that displacement use. However, when a copyrighted work is in an information storage and retrieval system, it is not displacing the copyrighted work. Senator BURDICK. Thank you very much. Your testimony has been very helpful. Mr. MCGOWAN. Thank you, sir. Senator BURDICK. Mr. Lodwick and Mr. Passano. Proceed. STATEMENT OF WILLIAM M. PASSANO, PRESIDENT, THE WILLIAMS & WILKINS CO. Mr. PASSANO. Mr. Chairman, I am William Passano, the president of The Williams & Wilkins Co. and director of Waverly Press, Inc., and with me is Mr. Lyle Lodwick, who is the director of marketing for our company, and Miss Andrea Wilderman, associate director of marketing. The Williams & Wilkins Co. and the Waverly Press are jointly owned and affiliated companies. We are publishers and printers of scientific books, medical and scientific journals, and medical books. We have over 800 employees in Baltimore and Easton, Md. The company was founded in 1890. While our business is not small, our markets for our products are very small-so small, in fact, that the loss of two or three sales for some of our books and journals-in each of the few hundred major markets for our products around the world-can make their publication unprofitable. I have four compelling reasons for asking to be allowed to testify before your committee. The first is that we are a major publisher of scientific periodicals and we believe that they are particularly vulnerable to photocopying, and we do not believe that there has been very much testimony on this subject. The second reason is that we wish to concentrate attention on the threat from photocopying rather than the threat from the computer. It is true that the computer may prove to be in the near future a real threat to owners of copyrighted material, but the threat from photocopying is here and now. It is a known, tangible matter and could and should be dealt with now, before it is too late. Our third reason is that we are not in a position which requires that we pull our punches for fear of offending our good customers. It is true that most of our customers are in education, but they are in higher education. The great majority of those we have talked with are of the opinion that uncontrolled photocopying-for all of its immediate advantages to the educator-poses a most serious and immediate threat to scientific publishing, and therefore, to the scientific world in general. Our final reason for wishing to testify today is that we are an independent publishing house in no way owned by or connected with a manufacturer of computers, copying machines, or any other electronic devices. Therefore, what we have to say need in no way be diluted by the necessity of "listening to his master's voice." Let me deal with the threat of photocopying to the average scientific periodical. We know that photocopying has already seriously reduced the income of most of the 39 periodicals which we publish. Incidentally, of this number 25 are published by us for scientific societies, such as this journal, "Journal of Pharmacology and Experimental Therapeutics," which we have published since 1909, and 14 are owned by our company outright, such as this one, "Medicine," which has been published for almost 50 years. It is easy to visualize how this erosion of income takes place. An individual scientist, instead of subscribing to a journal in his field, will go to a library and look over the table of contents of the most recent issue and get photocopies of these articles which interest him or which he would like to file away for future reference. The research laboratory or other institution, instead of subscribing to several copies of the periodical appropriate to its work, will subscribe to one copy and make photocopies of it to distribute amongst the persons working in the laboratory. A research worker wanting to collect copies of articles which apply to his particular research project, rather than writing the authors of these articles and asking them to supply reprints, which we as publishers have previously supplied to the authors, will photocopy the articles in question instead. An individual or institution, instead of purchasing from us back numbers or back volumes of a periodical which have appeared prior to the current subscription to it, will go to the library and make photocopies of those articles or perhaps even of complete issues which are his special interest. You may ask, Mr. Chairman, how do we know that this takes place? In the first place, we have talked to librarians and scientists all around the country and they tell us that it does, in fact, take place and in great quantities. Some of our periodicals and photocopied more violently than others, but none escape. This journal, "Medicine," Senator, is one of the most photocopied journals that we publish, and sometimes there are only one or two articles in any one issue. It is a monograph-type journal and, therefore, when you photocopy one article you sometimes have photocopied the whole issue. In the second place, the growth of our subscription business in these boom times of the 1960's lagged behind the growth of the market. It seems to us that the handwriting is obviously on the wall. Three years ago we started four new journals. Before doing so we were very confident that the editorial content of these periodicals was excellent and filled a longfelt need. We, of course, expected these new journals to lose money at the start, but they not only did this, but are continuing to lose money today when they should, by all rights, have been on a self-supporting basis. We have been told by librarians and others that these journals are in considerable demand for photocopying. It seems obvious to us that the failure of their subscription lists to grow to a point where they would be self-supporting is due to the fact that persons who otherwise would subscribe are depending on photocopying to supply their needs. We as a medical publisher are not the only loser in this situation. The profit shown by the 25 periodicals that we publish for scientific societies, such as this one, the "Journal of Pharmacology and Experi mental Therapeutics," is shared with the scientific societies for whom we publish. As uncontrolled photocopying reduces the income of these periodicals, the society's income is reduced as well as our own. When the circulation is curtailed to the point that income fails to cover expenses, then of course the periodicals either go out of existence or must be kept alive by subsidy either from the Government or from, in some cases, drug manufacturers. Now, it is well known, I think, to all of us that this photocopying is illegal under the present copyright law. The difficulty is that the term "fair use" sort of eases the conscience of anyone who wants to make a copy of an article appearing in one of our journals. It is a little bit like the use of alcoholic beverages in prohibition days. A man who wanted to take a drink was going to do so regardless of what the law said in the matter, and the man who wants to make a photocopy is going to do so as long as nobody is looking over his shoulder to tell him no. In our opinion it is unrealistic to think otherwise and to believe that examples of what might be considered "fair use" in the House report are in any way going to cut down on the billions of photocopies which are made annually today of copyrighted material. In our opinion there are only two roads to follow if there is a serious intention to protect the rights of the copyright owner against the economic competition of the copying machine. One is to ban the use of photocopying machines unless they are operated by institutions who are charged with the responsibility of seeing that no copyrighted material is copied without the permission of the copyright owner. We feel that it is unrealistic and not in the public interest to consider restricting in any way the use of photocopying devices. They serve a very useful purpose in the dissemination of knowledge. Since we, as publishers, are in that business, we certainly don't want to see the spread of knowledge curtailed. To us the only solution to the problem is a simple system of royalty payments with a minimum of redtape. At this point I want to turn the floor over to Mr. Lyle Lodwick, director of marketing of my organization, who will explain to you how and why we arrived at this conclusion and how such a system will work in actual practice. This morning, Senator, you said that you wanted answers, not questions, and we think we are in a position to give you an answer here as to how a system of royalty payments for the privilege of photocopying can be set up and made to work. It may not be the only system—I am sure it is not-and it probably is not even the best, but at least we have thought it through to the point where it can be made the beginning of a practical, workable, simple system. Before turning the floor over to Mr. Lodwick, I would like to read you a 4-line poem written by James Russell Lowell in 1885 entitled "International Copyright." It seems to me that it is just as germane to piracy by photocopying today as it was to the type of piracy that took place when James Russell Lowell wrote it. This is the poem: Thank you, sir. In vain we call old notions fudge And bend our conscience to our dealings Senator BURDICK. Mr. Lodwick. |