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right. His development of printing was re ership of a piece of land does not give the
thoughts expressed. In writing the copyright
thers recognized that while a string of words
idea or thought is intangible and cannot be
What actually is copyrighted?
The determination of what material may be
plex matter. The notice customarily printed
step. Unlike the Patent Office, the Copyright
Office does not rule on the validity of copy-
reasons, it is not even necessary to deposit a
“We have no final answers to the
photocopying problem, and we need
deeply concerned have not yet made
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
ductory material, but this introduction is al tion, the management firm of George Fry and
Some publishers have resorted to extended Mr. Benjamin finds that the report "has al-
Mr. Koepke reports the following “basic
At the present time no significant damage oc.
curs to the copyright holders in the scientific
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,
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
The numerical majority of scientific journal
publishers are unconcerned about potential eco-
nomic damage resulting from facsimile copying
The typical scientific society that publishes one
or more journals feels that
-the society publishes a journal to disseminate
scientific and technical information;
--facsimile duplication of articles for dissemi-
nation is not only permissible but welcome:
* Library Journal, vol. 88 (August 1963), p. 2837–
*Special Libraries, vol. 54 (November 1963), p.
On the other hand, some of the largest com- copyright material, except for the limited mo. mercial publishers and large scientific societies nopoly granted to the author for a limited indicate concern regarding current copying time to publish and sell. This leads us to the practices with respect to their copyrighted jour question of what is fair use and what is unnals. These publishers indicate that they can fair, or infringement. Fair use is not, as it has suffer potential damage through -loss of circulation;
been termed by some, a form of infringement - diminished sales of back issues, reprints, and
which is condoned. The use of copyrighted preprints;
material in all ways which do not interfere -potential loss of advertising revenues. with the limited monopoly granted to the au
With the exception of a few specialized in thor is inherent in the copyright law and constances, there is no evidence to indicate that stitutes the justification for statutory copy. current copying practices result in a significant right. Historically and basically, copyright is dilution of a publisher's market for subscrip- simply the right to sell multiple copies and to tions. Several publishers and librarians indicate that duplication may actually stimulate sub
The difference between infringement and scriptions to a given journal over a period of time.
fair use is a matter of purpose, degree, and
the effect of the copying rather than the act Further evidence along this line is offered of copying or publishing as such. The difby Robert F. Clarke in a doctoral dissertation ferentiation between fair use and infringeat Rutgers University. He "found that the ment is fundamentally a problem of balancing volume of photocopying in no way approach what the author must dedicate to society in es that of conventional publishing, nor do the return for his statutory copyright (which var. data collected indicate that it is likely to do ies according to the nature of the works in. so.” He reported that “over 50 percent of the volved) against undue appropriation of what articles actually copied came from foreign society has promised the author in terms of journals.” The articles copied had a median protection of his exclusive right to make merlength of 4.7 pages. “Replies indicated that chandise of the product of his intellectual photocopying of particular journals over a work.5 period of time can lead to subscribing to these The meaning of “copy” in copyright is acjournals. Libraries are not cancelling subscrip- tually related to multiplication of copies and tions and substituting photocopies.”
publishing for sale, and the courts have fre
quently ruled that copyright does not restrict Fair use
the scholar from the taking of notes for indi. The very purpose for which statutory copy. vidual and private use. Of course, as a matter right is granted requires that the public be of practicality, it would be impossible to prepermitted to make any and all uses of the vent such note-taking, even if it were illegal.
The ultimate extension of this principle of * Library Journal, vol. 88 (July 1963), p. 2625–59.
fair use is found in the rights of reviewers and others to quote and republish in unlimit.
ed multiple copies extracts from copyrighted Among recent publications relevant to Mr. Gos works. nell's discussion of the new copyright legislation Abe A. Goldman, general counsel for the is Reprography and Copyright Law, edited by copyright Office, aptly writes: Lowell H. Hattery and George P. Bush, pub; Even more far-reaching in practical effect are lished by the American Institute of Biological the limits drawn around the exclusive rights of Sciences. The following note appears under the
authors by the accretion of custom and prousual copyright notice: "George P. Bush will not enforce his copyright after January 1, 1970. Per
nouncements of the courts. A simple illustration
is one so basic that we take it for granted and mission to copy the whole or part of this docu
don't even think of it as a limitation on an ment is hereby granted to those who wish to use such copies in educational works, professional read or recite a work privately, or to copy it
author's rights-namely, that anyone is free to journals, as well as in an information-handling storage or retrieval system. Permission to others * Ralph R. Shaw, Literary Property in the U.S. to copy is governed by ‘Fair Use.'”
(Washington: Scarecrow Press, 1950).
down for his own private use.
any more harm? I don't believe it! There also Another basic concept is that copyright does are machines made to photograph books. You not give the author any exclusive right to the
lay the book face down on a glass plate, put a ideas embodied in his work. Anyone else is free to write about the same subject matter, or to
quarter in, press a button, and get a photoexpress the same thought or convey the same in.
copy. The photocopy is sometimes easier to use formation in his own words, or to make practical
than the pen or pencil copy, but it is more exuse of the information imparted by the author's pensive in every aspect but your time. work. Ideas, it is said, are as free as the wind; Now there are some who seriously consider what copyright protects is the author's own ex. this to be an infringement, or at least a potenpression of the idea-in words or music or pic tial source of income to themselves. They tures of his own creation. Other persons may can't put a speedometer on the ballpoint pen, not copy the author's expression, though they
but they can consider putting a counter on the are free to express in their own way the same
photocopy machine and collecting another thought or concept. The dividing line here, as may be obvious, is not always sharply defined.
quarter or dime for themselves. And this has This brings us to what I have heard charac
been seriously proposed.? terized as the “safety valve" of copyright, namely,
Let us assume that the average book or the doctrine of fair use. If the author's exclusive magazine nowadays costs a cent a page. A rights were absolute, if they restricted every use four-hundred-page book costs four dollars. of his work, then copyright could indeed become This cent a page includes all the manufactura roadblock to the growth and spread of learn.
ing, sales, and distribution costs as well as the ing and culture. To achieve the purposes stated
author's royalty, which is only a fraction of a in the Constitution, the works of authors must
cent a page. be made available for use by the public while, at the same time, the author enjoys such ex
Why should libraries be expected to collect clusive rights as will give him a just reward
a five-cent-a-page royalty just because this for his contribution to society. The underlying copy can be done by machine instead of long. problem of the copyright law is to achieve both
hand? What would be the expense of reportof these aims in some kind of fair balance. And ing back to each publisher and each author one of the important elements in maintaining how many of his pages have been copied and this balance is the doctrine of fair use."
sending the nickles along? Although it has In this age of rapidly advancing technol been seriously proposed, one representative of ogy, however, we tend to lose our perspective, a publishing group has said that it would take our sense of absolute black and white, and to
all the income for at least the first five years find many grey areas.
to figure out how to do it. No publisher that I know of has ever ob. Who can assume the burden of accurately jected when a reader in a public or a college determining what actually is subject to copy. library sat down at a library table with pencil right? Who is going to find the defunct puband paper and took notes or literally copied lishers or the heirs of dead authors to pass from a copyrighted book. Nobody objected if along the nickles? he borrowed or bought paper at the library Does anybody seriously think that many desk, or filled a fountain pen from a penny
sales are lost at 25 cents or more per page, or ink machine, or bought a ballpoint pen from even at five cents per page is that becomes a vending machine. So far, everybody agrees possible, when you can get the whole book for that the reader taking notes (or copying) is four dollars or less? Why should anybody get innocent or, at worst, not worth bothering a five-cents-a-page royalty through a public about. No court in the land would convict him of infringement.
Committee to Investigate Problems Affecting Occasionally, readers carry little microfilm Communications in Science and Education Systems cameras with them. If a reader takes a picture Committee, John Markus, McGraw-Hill Book Co., instead of a longhand copy-has he done
chairman. Proposals for Economical and Practical
System for Establishing and Operating a Copyright L. H. Hattery and G. P. Bush, ed., Reprography Clearing House (1963), 1947 p. Distributed by G. J. and Copyright Law (Washington: American Insti. Sophar, secretary, Jonker Business Machines, Gaitute of Biological Sciences, 1964), p. 12–13.
library and only a fraction of a cent from a library is a direct and natural extension of commercial publisher?
traditional library service. Simple arithmetic tells us that single 2. Such service, employing modern copying copying can never be anywhere near as cheap methods, has become essential. as multiple publication. This still is an age of 3. The present demand can be satisfied mass production. No library copying machine without inflicting measurable damage on pubcan ever compete with the original product. lishers and copyright owners.
The problem is more complex when a book 4. Improved copying processes will not goes out of print and is unobtainable. Then materially affect the demand for single-copy somebody may be willing to pay for a photo library duplication for research purposes. copy of the whole book. But if a publisher Present membership of the committee indoes not keep copies of his book available, cludes Rutherford D. Rogers, Stanford Unihow much right should he have to restrict versity, chairman, representing the Associaothers? Can he claim copyright if he won't tion of Research Libraries; Arthur Charpenmake copies for sale? I, for one, firmly be tier, Association of the Bar of the City of lieve that the privilege of copyright should New York, American Association of Law carry with it the responsibility to make copies Librai ies; Charles F. Gosnell, New York Unireadily available. This principle operates in versity, ALA; Chester M. Lewis, New York the music field, where there is compulsory li Times, Special Libraries Association; Harry censing.
L. Kownatsky, Philadelphia, Music Library Joint committee on fair use
Association. (Mr. Charpentier, now president
of the American Association of Law Libraries, The problem of photocopying in libraries has been replaced by Erwin C. Surrency, has long been the subject of study and discus.
Temple University, Philadelphia.) sion. The development of photostat service in large reference libraries in the 1920's first Current efforts for revision aroused the concern of book publishers. An
of the copyright law attempt to clarify the situation was made in
Recognizing the need for clarifying many the thirties with the concluding of a gentle
issues and for meeting modern needs, the men's agreement between the Joint Committee
Register of Copyrights in the Library of Conon Materials for Research and the National
gress has been patiently developing a proAssociation of Book Publishers, the trade as.
posed revision of the law. The history of these sociation of book publishers which has since efforts has been well told."' In summary, it gone out of existence.
may be reported that the Register's Office has Although the agreement was later made the
issued an impressive scholarly and impartial basis of a Material Reproduction Code, pre series of studies on the present law and possipared by the Association of Research Libraries
ble revisions. The Register's staff has conductand adopted in 1940 by the American Library ed a series of panel discussions based on the Association, it did not really clear the air.S studies and on tentative drafts of various sec. As the outgrowth of further discussion, the
tions of the proposed new law. They have Joint Libraries Committee on Fair Use in
provided a forum for the expression of virPhotocopying was constituted in 1957. An ex
tually every shade of interest and concern in tensive report was presented in the ALA Bul.
copyright legislation. The author of this letin for June 1961 (vol. 55, p. 571-73). A
paper, as chairman of the ALA Committee on summary statement was distributed to the
Copyright Issues, attended these meetings, lisALA Council as part of the ALA Copyright
tening carefully and speaking rarely. Issue Committee report in January 1964. Its findings were as follows:
19 U.S. Library of Congress. Register of Copy1. The making of a single copy by a rights, Copyright Law Revision, Part 6. Supple
mentary Report of the Register of Copyrights on the 'ALA Bulletin, vol. 35 (February 9, 1941), p. 64. General Revision of the U.S. Copyright Law, Eighty.
* Also published in Special Libraries, vol. 55, ninth Congress, first session. House Committee Print, no. 2 (February 1964), p. 104-06.
Committee on the Judiciary, May 1965.