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right. His development of printing was re-
garded primarily as an advance in the art of
copying. His type was cut and cast to look
like manuscript. The spread of the art of
printing was duly opposed by the scribes,
professional copyists, and amanuenses of the
day.

As the history of law goes, copyright is a
relatively new subject. It was not even
thought of until long after the invention of
printing over 500 years ago.

The roots of our present copyright law are
found in England in the 1500's and 1600's
when Crown and Church combined with the
Stationers Company to maintain a tight mo-
nopoly of printing and bookselling for the
purposes of censorship as well as of profit.
The first specific English statute on copyright

was enacted in 1710.

Our U.S. Constitution provides the following
(Article I, Section 8) relating to the powers
of Congress: "To promote the Progress of
Science and Useful Arts, by securing for lim-
ited Times to Authors and Inventors the ex-
clusive Right to their respective Writings and
their Discoveries."

Statute law and court decisions thus pro-
vide that the essential effect of copyright is to
give the author or his agent the exclusive
right to multiplication of copies for sale. Its
basic purpose is to provide authors compensa.
tion for contributing to the common good by
publishing their works. This compensation is
something over and above the actual cost of
manufacturing and distributing a book, but it
is obtained only once, and no direct benefit
accrues to an author (or publisher) from the
resale of secondhand copies, for example.
Copyright is not primarily for the benefit of the
author but primarily for the benefit of the
public.

There are, however, authors who do not be-
lieve this dictum or who do not like to accept
it. Quite recently, in a conference between
groups of authors, educators, and librarians,
a prominent author asserted that his group
believed that an author's work was his abso-
lute property, and that nobody but authors
had any right to discuss the matter of copy-
right. He declared that any limitation of du-
ration of copyright was per se an abridge-
ment of the author's right. He impatiently
brushed aside the reminder that absolute own.

ership of a piece of land does not give the
owner the right to do as he pleases with it.
Nor is any other property right not subject to
overriding considerations of public interest.

A careful distinction must also be observed
between the words as written and the ideas or
thoughts expressed. In writing the copyright
clause in the Constitution, our Founding Fa
thers recognized that while a string of words
may be tangible and possible to protect, the
idea or thought is intangible and cannot be
exclusive property. For the good of all, ideas,
thoughts, and knowledge must be freely avail-
able and uncontrolled by any monopoly.
What actually is copyrighted?

The determination of what material may be
actually subject to copyright is a very com-
plex matter. The notice customarily printed
on the verso of a title page is only the first
step. Unlike the Patent Office, the Copyright
Office does not rule on the validity of copy-
rights. Anybody can print a notice or claim
on almost anything. Except for prosecuting
infringements or for certain other technical
reasons, it is not even necessary to deposit a
copy or file a form with the Copyright Office.

Casual browsing in new-book shelves, par-
ticularly among the paperbacks and reprints,
will quickly turn up centuries-old classics in
modern format with brand-new copyright
claims.

A typical example is the well-known
"Fanny Hill." Although the story first ap-
peared in print in 1749, a recent edition bears
the copyright date of 1963. It has been said
that the copyright date may cover the intro-

"We have no final answers to the
photocopying problem, and we need
the benefit of your further explora-
tion. Many of those who should be
deeply concerned have not yet made
their voices heard. Those who remain
on the sidelines run the risk of find-
ing that their needs have not been
given full consideration."-Register
of Copyrights Abraham L. Kamin-
stein, in Reprography and Copyright
Law.

ductory material, but this introduction is al-
most wholly taken from contemporary reviews
and comment of over two centuries ago. The
classics of Malthus, Adam Smith, Isaac New-
ton, and a host of others can likewise be
found covered with this presumptive mantle
of protection, although it is obvious that copy-
right on these works long ago expired.

Some publishers have resorted to extended
definitions of what they conceive copyright
restrictions to be or what they would like us
to think them to be. For example:

All rights reserved. No part of this book may
be reproduced or utilized in any form or by
any means, electronic or mechanical, including
photocopying, recording or by any information
storage or retrieval system, without permission
in writing from the Publisher.

This claim suggests the following ques-
tions: Why buy a book if you can't utilize it?
What is the use if you are not allowed to read
it and commit what you read to that most
magnificent of all means of storing and re-
trieving information, the human brain?

Another notice apparently is intended to
prevent libraries from putting a permanent
binding on a paperback book:

For copyright reasons this book may not be
issued to the public on loan or otherwise except
in its original soft cover.

This is indeed a weird extension of copy-
right to prevent binding a book. Maybe the
publisher thinks he has a patent on the book,
bound or unbound. A patent gives its owner
an exclusive right to a product or a process.
He may use it himself; he may license others
to use it, free or at a price; or he may pre-
vent its use by anyone. Thus a patent controls
the substance of a new development. A copy.
right is entirely different in this respect. It re-
quires that the material be published-made
available to the public generally.

Photocopying

Schools and libraries are the principal con
sumers of books, and book appropriations
have certainly been growing rapidly from fed-
eral, state, and local sources. We are increas-
ing our purchases as fast as we can, and we
have no intention of stopping. We could not
exist without books and periodicals.

Sponsored by the National Science Founda-

tion, the management firm of George Fry and
Associates in 1963 made a "Survey of Copy-
righted Material Reproduction Practices in
Scientific and Technical Fields." This survey
is described by John C. Koepke, senior staff
consultant in the Fry organization, and by
Curtis G. Benjamin, chairman of the manage
ment board of McGraw-Hill Book Company.

Mr. Benjamin finds that the report "has al-
lowed book authors and publishers to breath
more easily."

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Mr. Koepke reports the following "basic
conclusion":5

At the present time no significant damage oc-
curs to the copyright holders in the scientific
and technical fields, although reproduction of
this material is widespread and growing rapidly.
He further notes:

Authors of scientific and technical journal arti
cles are notably unconcerned with the problem.
In fact, the majority of them actually consider
the copying of their material to be an advan-
tage to them. By far the greatest percentage of
authors are not paid for their contributions to
scientific and technical journals and, therefore,
suffer no economic damage. In the final analysis,
authors are concerned only from the standpoint
of misuse or plagiarism.

Publishers of scientific and technical books
are generally not concerned at present by the
inroads of facsimile duplication practices, be-
cause 1) the cost of copying an entire "inprint"
book is excessive, and 2) they realize that re-
searchers rely primarily on journal material in
their work.

The numerical majority of scientific journal
publishers are unconcerned about potential eco-
nomic damage resulting from facsimile copying
practices. This group takes the position that
either the copying of copyrighted material is
not widespread, or that if it is, it does not con-
stitute a significant threat to the existence of their
publications.

The typical scientific society that publishes one
or more journals feels that

41.

---the society publishes a journal to disseminate
scientific and technical information;
-facsimile duplication of articles for dissemi-
nation is not only permissible but welcome;
-facsimile duplication can sometimes result in
more, rather than fewer, subscriptions.

'Library Journal, vol. 88 (August 1963), p. 2837-

'Special Libraries, vol. 54 (November 1963), p.
553-56.

.

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-diminished sales of back issues, reprints, and preprints;

-potential loss of advertising revenues.

With the exception of a few specialized instances, there is no evidence to indicate that current copying practices result in a significant dilution of a publisher's market for subscriptions. Several publishers and librarians indicate that duplication may actually stimulate subscriptions to a given journal over a period of time.

Further evidence along this line is offered by Robert F. Clarke in a doctoral dissertation at Rutgers University. He "found that the volume of photocopying in no way approach es that of conventional publishing, nor do the data collected indicate that it is likely to do so." He reported that "over 50 percent of the articles actually copied came from foreign journals." The articles copied had a median length of 4.7 pages. "Replies indicated that photocopying of particular journals over a period of time can lead to subscribing to these journals. Libraries are not cancelling subscriptions and substituting photocopies."

Fair use

The very purpose for which statutory copy. right is granted requires that the public be permitted to make any and all uses of the *Library Journal, vol. 88 (July 1963), p. 2625-59.

Among recent publications relevant to Mr. Gosnell's discussion of the new copyright legislation is Reprography and Copyright Law, edited by Lowell H. Hattery and George P. Bush, published by the American Institute of Biological Sciences. The following note appears under the usual copyright notice: "George P. Bush will not enforce his copyright after January 1, 1970. Permission to copy the whole or part of this document is hereby granted to those who wish to use such copies in educational works, professional journals, as well as in an information-handling storage or retrieval system. Permission to others to copy is governed by 'Fair Use.'"

copyright material, except for the limited monopoly granted to the author for a limited time to publish and sell. This leads us to the question of what is fair use and what is unfair, or infringement. Fair use is not, as it has been termed by some, a form of infringement which is condoned. The use of copyrighted material in all ways which do not interfere with the limited monopoly granted to the author is inherent in the copyright law and constitutes the justification for statutory copy. right. Historically and basically, copyright is simply the right to sell multiple copies and to profit thereby.

The difference between infringement and fair use is a matter of purpose, degree, and the effect of the copying rather than the act of copying or publishing as such. The differentiation between fair use and infringement is fundamentally a problem of balancing what the author must dedicate to society in return for his statutory copyright (which varies according to the nature of the works involved) against undue appropriation of what society has promised the author in terms of protection of his exclusive right to make merchandise of the product of his intellectual work."

The meaning of "copy" in copyright is actually related to multiplication of copies and publishing for sale, and the courts have frequently ruled that copyright does not restrict the scholar from the taking of notes for individual and private use. Of course, as a matter of practicality, it would be impossible to prevent such note-taking, even if it were illegal.

The ultimate extension of this principle of fair use is found in the rights of reviewers and others to quote and republish in unlimited multiple copies extracts from copyrighted works.

Abe A. Goldman, general counsel for the Copyright Office, aptly writes:

Even more far-reaching in practical effect are the limits drawn around the exclusive rights of authors by the accretion of custom and pronouncements of the courts. A simple illustration is one so basic that we take it for granted and don't even think of it as a limitation on an read or recite a work privately, or to copy it author's rights-namely, that anyone is free to

Ralph R. Shaw, Literary Property in the U.S. (Washington: Scarecrow Press, 1950).

down for his own private use.

Another basic concept is that copyright does not give the author any exclusive right to the ideas embodied in his work. Anyone else is free to write about the same subject matter, or to express the same thought or convey the same information in his own words, or to make practical use of the information imparted by the author's work. Ideas, it is said, are as free as the wind; what copyright protects is the author's own expression of the idea-in words or music or pictures of his own creation. Other persons may not copy the author's expression, though they are free to express in their own way the same thought or concept. The dividing line here, as may be obvious, is not always sharply defined.

This brings us to what I have heard characterized as the "safety valve" of copyright, namely, the doctrine of fair use. If the author's exclusive rights were absolute, if they restricted every use of his work, then copyright could indeed become a roadblock to the growth and spread of learning and culture. To achieve the purposes stated in the Constitution, the works of authors must be made available for use by the public while, at the same time, the author enjoys such exclusive rights as will give him a just reward for his contribution to society. The underlying problem of the copyright law is to achieve both of these aims in some kind of fair balance. And one of the important elements in maintaining this balance is the doctrine of fair use."

In this age of rapidly advancing technology, however, we tend to lose our perspective, our sense of absolute black and white, and to find many grey areas.

No publisher that I know of has ever objected when a reader in a public or a college library sat down at a library table with pencil and paper and took notes or literally copied from a copyrighted book. Nobody objected if he borrowed or bought paper at the library desk, or filled a fountain pen from a penny ink machine, or bought a ballpoint pen from a vending machine. So far, everybody agrees that the reader taking notes (or copying) is innocent or, at worst, not worth bothering about. No court in the land would convict him of infringement.

Occasionally, readers carry little microfilm cameras with them. If a reader takes a picture instead of a longhand copy--has he done

L. H. Hattery and G. P. Bush, ed., Reprography and Copyright Law (Washington: American Insti tute of Biological Sciences, 1964), p. 12-13.

any more harm? I don't believe it! There also are machines made to photograph books. You lay the book face down on a glass plate, put a quarter in, press a button, and get a photocopy. The photocopy is sometimes easier to use than the pen or pencil copy, but it is more expensive in every aspect but your time.

Now there are some who seriously consider this to be an infringement, or at least a potential source of income to themselves. They can't put a speedometer on the ballpoint pen, but they can consider putting a counter on the photocopy machine and collecting another quarter or dime for themselves. And this has been seriously proposed."

Let us assume that the average book or magazine nowadays costs a cent a page. A four-hundred-page book costs four dollars. This cent a page includes all the manufacturing, sales, and distribution costs as well as the author's royalty, which is only a fraction of a cent a page.

Why should libraries be expected to collect a five-cent-a-page royalty just because this copy can be done by machine instead of longhand? What would be the expense of reporting back to each publisher and each author how many of his pages have been copied and sending the nickles along? Although it has been seriously proposed, one representative of a publishing group has said that it would take all the income for at least the first five years to figure out how to do it.

Who can assume the burden of accurately determining what actually is subject to copyright? Who is going to find the defunct publishers or the heirs of dead authors to pass along the nickles?

Does anybody seriously think that many sales are lost at 25 cents or more per page, or even at five cents per page if that becomes possible, when you can get the whole book for four dollars or less? Why should anybody get a five-cents-a-page royalty through a public

'Committee to Investigate Problems Affecting Communications in Science and Education. Systems Committee, John Markus, McGraw-Hill Book Co., chairman. Proposals for Economical and Practical System for Establishing and Operating a Copyright Clearing House (1963), 1947 p. Distributed by G. J. Sophar, secretary, Jonker Business Machines, Gaithersburg, Maryland.

library and only a fraction of a cent from a commercial publisher?

Simple arithmetic tells us that single copying can never be anywhere near as cheap as multiple publication. This still is an age of mass production. No library copying machine can ever compete with the original product.

The problem is more complex when a book goes out of print and is unobtainable. Then somebody may be willing to pay for a photocopy of the whole book. But if a publisher does not keep copies of his book available, how much right should he have to restrict others? Can he claim copyright if he won't make copies for sale? I, for one, firmly believe that the privilege of copyright should carry with it the responsibility to make copies readily available. This principle operates in the music field, where there is compulsory licensing.

Joint committee on fair use

The problem of photocopying in libraries has long been the subject of study and discussion. The development of photostat service in large reference libraries in the 1920's first aroused the concern of book publishers. An attempt to clarify the situation was made in the thirties with the concluding of a gentlemen's agreement between the Joint Committee on Materials for Research and the National Association of Book Publishers, the trade association of book publishers which has since gone out of existence.

Although the agreement was later made the basis of a Material Reproduction Code, prepared by the Association of Research Libraries and adopted in 1940 by the American Library Association, it did not really clear the air.

As the outgrowth of further discussion, the Joint Libraries Committee on Fair Use in Photocopying was constituted in 1957. An extensive report was presented in the ALA Bul letin for June 1961 (vol. 55, p. 571–73). A summary statement was distributed to the ALA Council as part of the ALA Copyright Issue Committee report in January 1964. Its findings were as follows:

1. The making of a single copy by a

ALA Bulletin, vol. 35 (February 9, 1941), p. 64. Also published in Special Libraries, vol. 55, no. 2 (February 1964), p. 104-06.

library is a direct and natural extension of traditional library service.

2. Such service, employing modern copying methods, has become essential.

3. The present demand can be satisfied without inflicting measurable damage on publishers and copyright owners.

4. Improved copying processes will not materially affect the demand for single-copy library duplication for research purposes.

Present membership of the committee includes Rutherford D. Rogers, Stanford University, chairman, representing the Association of Research Libraries; Arthur Charpentier, Association of the Bar of the City of New York, American Association of Law Libraries; Charles F. Gosnell, New York University, ALA; Chester M. Lewis, New York Times, Special Libraries Association; Harry L. Kownatsky, Philadelphia, Music Library Association. (Mr. Charpentier, now president of the American Association of Law Libraries, has been replaced by Erwin C. Surrency, Temple University, Philadelphia.)

Current efforts for revision

of the copyright law

10

Recognizing the need for clarifying many issues and for meeting modern needs, the Register of Copyrights in the Library of Congress has been patiently developing a proposed revision of the law. The history of these efforts has been well told. In summary, it may be reported that the Register's Office has issued an impressive scholarly and impartial series of studies on the present law and possible revisions. The Register's staff has conducted a series of panel discussions based on the studies and on tentative drafts of various sections of the proposed new law. They have provided a forum for the expression of virtually every shade of interest and concern in copyright legislation. The author of this paper, as chairman of the ALA Committee on Copyright Issues, attended these meetings, listening carefully and speaking rarely.

10 U.S. Library of Congress. Register of Copyrights, Copyright Law Revision, Part 6. Supplementary Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, Eightyninth Congress, first session. House Committee Print, Committee on the Judiciary, May 1965.

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