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right. His development of printing was re ership of a piece of land does not give the
garded primarily as an advance in the art of owner the right to do as he pleases with it.
copying. His type was cut and cast to look Nor is any other property right not subject to
like manuscript. The spread of the art of overriding considerations of public interest.
printing was duly opposed by the scribes, A careful distinction must also be observed
professional copyists, and amanuenses of the between the words as written and the ideas or
day.

thoughts expressed. In writing the copyright
As the history of law goes, copyright is a clause in the Constitution, our Founding Fa-
relatively new subject. It was

not

thers recognized that while a string of words
thought of until long after the invention of may be tangible and possible to protect, the
printing over 500 years ago.

even

idea or thought is intangible and cannot be
The roots of our present copyright law are exclusive property. For the good of all, ideas,
found in England in the 1500's and 1600's thoughts, and knowledge must be freely avail-
when Crown and Church combined with the able and uncontrolled by any monopoly.
Stationers Company to maintain a tight mo-
nopoly of printing and bookselling for the

What actually is copyrighted?
purposes of censorship as well as of profit.

The determination of what material may be
The first specific English statute on copyright actually subject to copyright is a very com-
was enacted in 1710.

plex matter. The notice customarily printed
Our U.S. Constitution provides the following on the verso of a title page is only the first
(Article 1, Section 8) relating to the powers

step. Unlike the Patent Office, the Copyright
of Congress: "To promote the Progress of

Office does not rule on the validity of copy-
Science and Useful Arts, by securing for lim rights. Anybody can print a notice or claim
ited Times to Authors and Inventors the ex on almost anything. Except for prosecuting
clusive Right to their respective Writings and infringements or for certain other technical
their Discoveries."

reasons, it is not even necessary to deposit a
Statute law and court decisions thus pro- copy or file a form with the Copyright Office.
vide that the essential effect of copyright is to Casual browsing in new-book shelves, par-
give the author or his agent the exclusive ticularly among the paperbacks and reprints

,
right to multiplication of copies for sale. Its will quickly turn up centuries-old classics in
basic purpose is to provide authors compensa- modern format with brand-new copyright
tion for contributing to the common good by claims.
publishing their works. This compensation is A typical example is the well-known
something over and above the actual cost of "Fanny Hill.” Although the story first ap-
manufacturing and distributing a book, but it peared in print in 1749, a recent edition bears
is obtained only once, and no direct benefit the copyright date of 1963. It has been said
accrues to an author (or publisher) from the that the copyright date may cover the intro-
resale of secondhand copies, for example.
Copyright is not primarily for the benefit of the
author but primarily for the benefit of the

We have no final answers to the
public.

photocopying problem, and we need
There are, however, authors who do not be. the benefit of your further explora-
lieve this dictum or who do not like to accept tion. Many of those who should be
it. Quite recently, in a conference between

deeply concerned have not yet made
groups of authors, educators, and librarians, their voices heard. Those who remain
a prominent author asserted that his group

on the sidelines run the risk of find.
believed that an author's work was his abso-

ing that their needs have not been
lute property, and that nobody but authors
had any right to discuss the matter of copy.

given full consideration.”—Register
right. He declared that any limitation of du.

of Copyrights Abraham L. Kamin-
ration of copyright was per se an abridge.

stein, in Reprography and Copyright
ment of the author's right. He impatiently

Law.
brushed aside the reminder that absolute own-

ductory material, but this introduction is al tion, the management firm of George Fry and
most wholly taken from contemporary reviews Associates in 1963 made a “Survey of Copy-
and comment of over two centuries ago. The righted Material Reproduction Practices in
classics of Malthus, Adam Smith, Isaac New. Scientific and Technical Fields.” This survey
ton, and a host of others can likewise be is described by John C. Koepke, senior staff
found covered with this presumptive mantle consultant in the Fry organization, and by
of protection, although it is obvious that copy Curtis G. Benjamin, chairman of the manage.
right on these works long ago expired. ment board of McGraw-Hill Book Company.

Some publishers have resorted to extended Mr. Benjamin finds that the report "has al-
definitions of what they conceive copyright lowed book authors and publishers to breath
restrictions to be or what they would like us more easily."2
to think them to be. For example:

Mr. Koepke reports the following “basic
All rights reserved. No part of this book may

conclusion":
be reproduced or utilized in any form or by

At the present time no significant damage oc.
any means, electronic or mechanical, including

curs to the copyright holders in the scientific
photocopying, recording or by any information and technical fields, although reproduction of
storage or retrieval system, without permission this material is widespread and growing rapidly.
in writing from the Publisher.
This claim suggests the following ques.

He further notes:
tions: Why buy a book if you can't utilize it?

Authors of scientific and technical journal arti.
What is the use if you are not allowed to read

cles are notably unconcerned with the problem.
it and commit what you read to that most

In fact, the majority of them actually consider
magnificent of all means of storing and re-

the copying of their material to be an advan-

tage to them. By far the greatest percentage of
trieving information, the human brain?

authors are not paid for their contributions to
Another notice apparently is intended to

scientific and technical journals and, therefore,
prevent libraries from putting a permanent suffer no economic damage. In the final analysis,
binding on a paperback book:

authors are concerned only from the standpoint
For copyright reasons this book may not be

of misuse or plagiarism.
issued to the public on loan or otherwise except

Publishers of scientific and technical books
in its original soft cover.

are generally not concerned at present by the

inroads of facsimile duplication practices, be
This is indeed a weird extension of copy. cause 1) the cost of copying an entire “inprint"
right—to prevent binding a book. Maybe the book is excessive, and 2) they realize that re-
publisher thinks he has a patent on the book, searchers rely primarily on journal material in

their work.
bound or unbound. A patent gives its owner
an exclusive right to a product or a process.

The numerical majority of scientific journal

publishers are unconcerned about potential eco-
He may use it himself; he may license others

nomic damage resulting from facsimile copying
to use it, free or at a price; or he may pre practices. This group takes the position that
vent its use by anyone. Thus a patent controls either the copying of copyrighted material is
the substance of a new development. A copy not widespread, or that if it is, it does not con-
right is entirely different in this respect. It re- stitute a significant threat to the existence of their
quires that the material be published-made publications.
available to the public generally.

The typical scientific society that publishes one

or more journals feels that
Photocopying

-the society publishes a journal to disseminate
Schools and libraries are the principal con-

scientific and technical information;

--facsimile duplication of articles for dissemi-
sumers of books, and book appropriations

nation is not only permissible but welcome:
have certainly been growing rapidly from fed. --facsimile duplication can sometimes result in
eral, state, and local sources. We are increas. more, rather than fewer, subscriptions.
ing our purchases as fast as we can, and we
have no intention of stopping. We could not

* Library Journal, vol. 88 (August 1963), p. 2837–

41.
exist without books and periodicals.

*Special Libraries, vol. 54 (November 1963), p.
Sponsored by the National Science Founda-

553-56.

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

profit thereby

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.

thersburg, Maryland.

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.

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