right. His development of printing was re- not even As the history of law goes, copyright is a The roots of our present copyright law are Our U.S. Constitution provides the following Statute law and court decisions thus pro- There are, however, authors who do not be- ership of a piece of land does not give the A careful distinction must also be observed The determination of what material may be Casual browsing in new-book shelves, par- A typical example is the well-known "We have no final answers to the Law. ductory material, but this introduction is al- Some publishers have resorted to extended All rights reserved. No part of this book may This claim suggests the following ques- Another notice apparently is intended to For copyright reasons this book may not be This is indeed a weird extension of copy. Photocopying Schools and libraries are the principal con- Sponsored by the National Science Founda- tion, the management firm of George Fry and Mr. Benjamin finds that the report “has al- Mr. Koepke reports the following "basic At the present time no significant damage oc- Authors of scientific and technical journal arti Publishers of scientific and technical books The numerical majority of scientific journal The typical scientific society that publishes one 41. --the society publishes a journal to disseminate 'Library Journal, vol. 88 (August 1963), p. 2837- 'Special Libraries, vol. 54 (November 1963), p. On the other hand, some of the largest commercial publishers and large scientific societies indicate concern regarding current copying practices with respect to their copyrighted journals. These publishers indicate that they can suffer potential damage through -loss of circulation; -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 approaches 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 copyright 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 unlimit ed 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 author's rights-namely, that anyone is free to read or recite a work privately, or to copy it 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 learn. ing 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 Institute 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 report. ing 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 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 Bulletin 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: 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 Associa tion 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. |